Dr. Foushee when called to be sworn was found to be disqualified, and was permitted to withdraw. Colonel James Barbour was called in his stead and accepted.
The selection of the grand jury having been completed, the grand jury was duly sworn by the clerk. It was composed of the following citizens:
John Randolph, Foreman, Joseph Eggleston, Joseph C. Cabell, Littleton W. Tazewell, Robert Taylor, James Pleasants, John Brockenbrough, William Daniel, James M. Garnett, John Mercer, Edward Pegram, Munford Beverly, John Ambler, Thomas Harrison, Alexander Shephard and James Barbour.
The Chief Justice promptly delivered an appropriate charge to the grand jury. He dwelt more particularly upon the definition and nature of treason, and the testimony requisite to prove it. He said in part: “To you by the Constitution and laws of our country is confided the important right of accusing those whose offenses shall have rendered them subject to punishment under the laws of the United States. It is on you that the fundamental principles on which the stability of our political institutions and the safety of individuals most greatly depend. For to little purpose would laws be formed to protect the innocent of the body politic from crimes of the worst nature if a misplaced nonentity should control the execution of them. Juries, gentlemen, as well as judges, should be superior to every temptation, which hope, fear or compassion, may suggest; who will allow no influence to balance their love of justice; who will follow no guide but the laws of their country.
“In outlining to you, gentlemen of the jury, those offenses which are cognizable in the court, and which may scarcely be noticed by you, the first on the calendar, as well as the highest known atrocity, is treason against the United States. With a jealousy peculiar to themselves the American people have withdrawn the subject from the power of their legislature, and have declared in their Constitution that ‘treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.’”
After the grand jury had retired Colonel Burr addressed the court on the propriety of specially instructing them in regard to the admissibility of certain evidence, which he stated would be laid before the grand jury by the attorney for the United States. Mr. Hay opposed this application. He said he could never agree to it, and he trusted the court also would never sanction such a suggestion; that Colonel Burr stood before the court on the same footing as any other citizen, and he hoped the court would not distinguish between his case and that of any other. The question was postponed for further discussion. The court then adjourned to the following morning.
The court met the next day and the grand jury also appeared. It became apparent that nothing effectual could be done until the arrival of General Wilkinson, the most important witness for the Government. The grand jury were therefore adjourned from day to day until he put in his appearance.
Meanwhile Mr. Hay had moved to commit Burr on a charge of high treason against the United States. On his preliminary examination he was bailed on the charge of misdemeanor, but said Mr. Hay “there was no evidence of an overt act. The evidence is different now.”
This motion was discussed at length throughout the day, and provoked one of the most eloquent debates of the whole trial and revealed the political passions of the day. Mr. Botts “begged leave to make a few remarks on this extraordinary application, and the pernicious effects such an extraordinary measure, if generally practised, would inevitably produce. The organ particularly appropriated for the consideration of the evidence which the motion calls for, is the grand jury; and the motion is to divest the grand jury of the office, which the Constitution and laws have appropriated to them, and to devolve it upon the court. The grand juror’s oath is to inquire into all crimes and misdemeanors committed within the district of the State of which they are freeholders. Their office is to perform that which the court is now called upon to perform. To them belongs the exclusive duty of inquiring and examining into all species of evidence, which may lead to a conviction of the crimes of which Colonel Burr is now charged; but there is a great objection to the exercise of this examining and committing power by a high law officer, who is to preside upon the trial, when the grand jury, the appropriate tribunal, is in session.”
After Mr. Botts had taken his seat, Mr. Hay in response to an inquiry by the Chief Justice, as to whether the counsel for the prosecution intended to open the case more fully, stated, “that he had not intended to open it more fully; he did not himself entertain the least doubt, that if there was sufficient proof produced to justify the commitment of Colonel Burr, the court had completely the right to commit him.”