Note 73 — Iredell, James. Observations on George Mason’s Objections to the Federal Constitution. By Marcus

I have since found that in the constitutions of some of the States there are much stronger restrictions on the Executive authority in this particular than I was aware of. In others the restriction only extends to prosecutions carried on by the General Assembly, or the most numerous branch of legislature, or a contrary provision by law; Virginia is in the latter class. But when we consider how necessary it is in many cases to make use of accomplices to convict their associates, and what little regard ought in general to be paid to a guilty man swearing to save his own life, we shall probably think that the jealousies which (by prohibiting pardons before convictions) even disabled the Executive authority from procuring unexceptionable testimony of this sort, may more fairly be ascribed to the natural irritation of the public mind at the time when the constitutions were formed, than to an enlarged and full consideration of the subject. Indeed, it could scarcely be avoided, that when arms were first taken up in the cause of liberty, to save us from the immediate crush of arbitrary power, we should lean too much rather to the extreme of weakening than of strengthening the Executive power in our own government. In England, the only restriction upon this power in the King, in case of Crown prosecutions (one or two slight cases excepted) is, that his pardon is not pleadable in bar of an impeachment. But he may pardon after conviction, even on an impeachment; which is an authority not given to our President, who in case of impeachments has no power either of pardoning or reprieving.