The evidence introduced on behalf of the prosecution was a copy of the record in the case of Bollman and Swartout in the Supreme Court of the United States, which contained the depositions of General Eaton and General Wilkinson directly connecting Burr with the offense charged against him. No verbal testimony was heard, except that of Major Perkins, who told of the arrest of the prisoner and of his conveyance of him to Richmond.
At the conclusion of the evidence a motion in writing was submitted by Mr. Hay for the commitment of the accused on two charges, viz:--
First. For a high misdemeanor, in setting on foot, within the United States, a military expedition against the dominions of the King of Spain, a foreign prince, with whom the United States, at the time of the offense, were, and still are, at peace.
Second. For treason in assembling an armed force, with a design to seize the city of New Orleans, to revolutionize the territory attached to it, and to separate the western from the Atlantic states.
It soon developed that this motion would cause considerable discussion, and as previously agreed upon by counsel, with the approval of the Chief Justice, the further hearing of the case was adjourned to the House of Delegates in the Capitol, where all subsequent proceedings were had.
The argument on the motion lasted two days. It was opened by Mr. Hay for the United States. He was followed by Mr. Wickham and Mr. Randolph for the accused. Colonel Burr spoke about ten minutes in his own behalf, and Mr. Rodney, the Attorney-General of the United States, closed the discussion.
The third day of the trial, the Chief Justice delivered his written opinion. “On an application of this kind,” says he, “I certainly should not require that proof which would be necessary to convict the person to be committed on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused; but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it.” The Chief Justice then reviews the testimony of General Eaton and General Wilkinson in the Swartout and Bollman case to show how far these charges are supported by probable cause, and in conclusion delivers himself as follows: “I shall not therefore insert in the commitment the charge of high treason, since it will be entirely in the power of the Attorney-General to prefer an indictment against the prisoner for high treason should he be furnished with the necessary testimony.”