In a strange reversal, it was Marshall, a Federalist, who upheld an extremely strict and narrow interpretation of treason, while Jeffersonian Republicans actually demanded Burr’s head on a pike and were happy to enforce a broader standard.
Years earlier, it had been the Jeffersonians who opposed the liberal use of treason statutes to prosecute the organizers of the Whiskey and Fries rebellions. Now, it was a federalist judge who upheld it conspirator committing treason (which no one really disputed Burr had committed) was different from carrying it out. « Conspiracy is not treason, » Marshall reasoned. However much Burr may have plotted and schemed, such actions, which occurred before the « actual mustering » of the troops, did not meet the legal standard. (Never mind that Burr I had gathered a force of about 60 men and moved them toward New Orleans.) Ultimately, bound by Marshall’s legal interpretation, the jury acquitted Burr.
Republicans were furious and accused Marshall of writing a « Treaty how best to commit treason without detection or punishment », while Jefferson himself railed against « the founders’ original error of establishing a judiciary independent of the nation ». But in a divided nation, and amid disagreement over which laws Burr had broken, if there were any, the acquittal closed the door to a truly bizarre chapter in American history.Once again disgraced, Burr fled to England, only to return to the United States years later, where he lived his last years in obscurity.
Also at John Marshall’s strict standards, surely there was little doubt that Jefferson Davis, onetime United States Senator and Secretary of War, had committed treason against his country. He was, after all, the president of the Confederacy and responsible for a civil war that ultimately claimed 750,000 lives.
Or was it that simple?
In the aftermath of Abraham Lincoln’s assassination, Davis was a wanted man. The new president, Andrew Johnson, issued a proclamation declaring that the attack on Lincoln, as well as Secretary of State William Seward, had been « incited, concerted and procured by and between Jefferson Davis, late of Richmond, Virginia » and » other rebels and traitors against the United States government.” Johnson ordered Davis arrested and placed a $100,000 bounty on his (roughly equivalent to $2 million in today’s money). On May 10, 1865, the defiant former president was captured by federal troops and placed in a prison cell at Fort Monroe, Virginia, while government officials debated whether to try him in military or civilian court.
