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.” Mr. Wickham complained because the gentlemen on the other side had not given them notice of their intended motion. “We come into this discussion completely off our guard, completely unprepared.” “The fact is this,” replied Mr. Hay, “Mr. Wilkinson is known to be a material witness in this prosecution; his arrival in Virginia, might be announced in this city, before he himself reached it. I do not intend to say what effect it might produce upon Colonel Burr’s mind; but certainly Colonel Burr would be able to effect his escape, merely upon paying the recognizance of his present bail. My only object then was to keep his person safe, until we could have investigated the charge of treason; and I really did not know but that if Colonel Burr had been previously apprised of my motion he might have attempted to avoid it. But I did not promise to make the communication to the opposite counsel, because it might have defeated the very end for which it was intended.”