In such manner Mr. Botts soon put the assemblage in good humor. Even the Chief Justice, who enjoyed a joke as much as the next man, must have joined in the fun. Having thus ingratiated himself with his audience by this gay introduction he proceeded to present his serious argument. His first proposition he told them would be to endeavor to establish the fact in support of the motion that the acts proved to have taken place on Blennerhassett Island were not in themselves acts of war and that no intention could make them acts of war.
What had actually happened? According to Mr. Botts about thirty men had landed on the island and remained there for two or three days. It is true, they had some arms and ammunition. They guarded their property at the boats. They prepared provisions to take with them down the river. At a place contiguous to the island it was admitted they had killed some squirrels. As notable a circumstance as any in this overt act was that they had had what one of the witnesses called “a watchword.” All but Blennerhassett and Tyler were confessedly ignorant of the plan. They got alarmed on hearing the report of a mob and fled secretly in the night after Comfort Tyler had declared his purpose not to resist constituted authorities.
Now, said Mr. Botts, the proposition of the opposing side was that these were acts of war, that they were intended first against the people of Wood County, Virginia, in which the island was situated, and then against New Orleans.
He would suppose first that the acts were against Wood County. Very well, then, the boats, the oars, the provisions for a long journey, the after-descent of the river were overt acts of levying war against Wood County.
“But, Sir, the party was armed!” he exclaimed, imitating the manner of the prosecution. Why? Mr. Botts contended that it showed they were expecting the people of Wood County would attack them. In other words Mr. Botts apprehended that the people of Wood County meditated war on the people of the island, not that the islanders meditated war against the people of Wood County.
Then, continued Mr. Botts, it was found that the people of the island had fled silently in the night from those of Wood County. And because they fled, it seems they were guilty of acts of war!
On the other hand, said Mr. Botts, pursuing his argument, “if the war was not against Wood County it was against New Orleans. And New Orleans was 2200 miles away!”
In the same playful mood, Mr. Botts suggested that the defendant might claim that these persons had no arms, or if they had guns that they were not long enough to shoot all the way from the island to New Orleans. He presumed that the reply the prosecution would make to that was that no arms were necessary, that they might make war with their fingers. Or the defendant might urge that persons in this country have a right to carry arms, that it is also conformable to usage for people going down the river to kill ducks and other such game.
“The prosecutor,” Mr. Botts presumed, “would answer that arms are not necessary; that they had three or four guns, a little powder and shot even to kill fowls and ten or twelve boats; that it was a most bloody war indeed; that without arms it would be war, but with these arms it was a most dangerous war against the United States!”
If this was making war against the United States, declared Mr. Botts, then “If I run away and hide to avoid a beating, I am guilty and may be convicted of assault and battery!” Here Mr. Botts suggested the propriety of adjourning.