When Court met next morning and Mr. Botts resumed his argument he was in the same facetious mood. Once more he went back to the charge of levying war and recalled the failure of the grand juries in Mississippi and Kentucky to indict.
“The Mississippi Territory and Kentucky, as we are informed, were the seat of war,” he observed. “But the simpletons of that State and Territory hunted but could not find the war. They were so stupid as not to perceive in a collection of men without arms, without any possible means of annoyance, without any hostile disposition and without the possibility of getting away their women and families, anything criminal, much less any aptitude to overturn two mighty empires.
“It remained for us, the proud members of the Virginia bar, to come out and astonish the world with the profundity of our learning in matters of war. They have ascertained that there was a terrible war. I ask you what manner of war was it? We have had a much more serious war here than on the island. We have had here a carnage of breaths, sour looks and hard words and the roaring of vocal cannon. We have had a battle with the laws and the Constitution fought courageously and furiously by our enemy.
“Is it not a mockery to speak of the war on Blennerhassett’s Island? Shall we not be the sport of Europe and the world by such a discussion?”
In spite of the nation’s independence, which it now had enjoyed for a matter of more than thirty years, the Virginia bar still did obeisance to that of England. Though Burke had died in 1797 and Charles James Fox and the younger Pitt had gone to join their fathers within the year, counsel in the Burr case transferred their veneration to their successors in Westminster. They seemed to have imagined fatuously that this spirit of camaraderie was reciprocated and that the great men of England had temporarily put aside the affairs of empire to follow every move being made by opposing counsel in the hall of the Virginia House of Delegates in Richmond.
Now, continued Mr. Botts, Mr. Hay had said that constructive treason in this country would not be dangerous. Mr. Botts would suppose an imaginary case. He would suppose there had been well-grounded apprehension of an approaching war with a neighboring and powerful nation. He would suppose that the United States had a feeble army in the neighborhood of the boundary line between the two countries, and that the American general had orders to fall back. Mr. Botts, be it noted, was as good at making hypothetical cases for the defense as was Mr. Wirt for the prosecution.
He would suppose that the populous rich city of New Orleans was in danger of invasion. He would suppose that a hero distinguished for military science and valor and as patriotic as he was ambitious of honorable fame—but whose good name was blighted and blasted by the malice of his countrymen—should have seen the dangers hanging over his country: New Orleans threatened with invasion and conquest by a Spanish force, the citizens there in danger of murder and captivity, their wives and daughters ready to be a prey to Spanish lust, and all else in that favored country exposed to desolation.
He would suppose that the hero knew that a band of faithful patriots could be collected immediately around his standard. He would suppose that with this band of patriots the hero should at this fortunate and critical moment have rescued the country, the army, the people, by a reasonable relief to the decrepit and half baffled forces of the United States. He would suppose that in the same magnanimous spirit the hero should after this have gone on his enterprise to establish the independence of the Mexicans and give liberty to millions now groaning under bondage.
Suppose he had done all this: he would have acquired immortal glory and be renowned in future ages as the deliverer of his country, worshiped as its idol and called its savior as Washington was.
Thus Mr. Botts artfully contrived to present the character of Aaron Burr as his defenders chose to imagine it. The defense scored the prosecution for trying to introduce constructive treason into the United States. It did not object to introducing constructive heroism, provided the hero was Colonel Burr. The Colonel laughed at William Wirt’s extravagant language. Is it not possible that he stifled a cynical smile as he heard himself thus being glorified by young Botts?