Dissenting in part opinion by
Justice COOPER.I concur with that portion of the majority opinion entitled “Appointment of Special Justices,” ante, at 365-66. From the remainder of the majority opinion, I strongly dissent.1
I. FACTS.
The provisions of Kentucky’s “merit system” statutes that are pertinent to this case are:
KRS 18A.095. Rights of executive department employees.
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(2) A classified employee with status shall not be dismissed, demoted, suspended, or otherwise penalized except for cause.
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*372KRS 18A.111. Probationary periods for classified service — Initial and promotional.
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(2) An employee who satisfactorily completes the initial probationary period for the position to which he was initially appointed to the classified service shall be granted status and may not be demoted, disciplined, dismissed, or otherwise penalized, except as provided by the provisions of this chapter.
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KRS 18A.140. Prohibition against discrimination and political activities.
(1) No person shall be appointed or promoted to, or demoted or dismissed from, any position in the classified service, or in any way favored or discriminated against with respect to employment in the classified services because of his political or religious opinions or affiliations or ethnic origin or sex or disability....
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KRS 18A.990. Penalties.
(1) Any person who willfully violates any provision of KRS 18A.005 to 18A.200 or of the rules shall be guilty of a misdemeanor, and shall upon conviction be punished therefor with a sentence of from thirty (30) days to a maximum of six (6) months in jail.
(2) Any person who is convicted of a misdemeanor under KRS 18A.005 to 18A.200 shall, for a period of five (5) years, be ineligible for appointment to or employment in a position by the Commonwealth, and if he is an officer or employee of the Commonwealth, shall forfeit his office or position.
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Since the misdemeanor penalty in KRS 18A.990(1) can be probated or conditionally discharged, it is the forfeiture-of-office penalties in KRS 18A.990(2) that are of primary concern to an offending bureaucrat.
In May 2005, a thirty-year employee of the Kentucky Transportation Cabinet delivered to the Attorney General of Kentucky a document, consisting of approximately 300 pages, alleging violations of the merit system statutes by Transportation Cabinet supervisors and other high-ranking officials of the administration of Governor Ernie Fletcher. The gist of the allegations was a conspiracy to terminate or force resignations2 of merit system employees who were registered Democrats and replace them with persons who were registered Republicans.
The Franklin Circuit Court empaneled a special grand jury to investigate the allegations. KRS 29A.220; Order, Mise. No. 28, Franklin Circuit Court, May 25, 2005.3 Although the court’s charge to the grand jurors is not found in this abbreviated record, the charge presumably directed them to inquire into the allegations of merit system violations and to “find an indictment where they have received what they believe to be sufficient evidence to support it,” ie., probable cause. RCr 5.10 (“Evidence supporting indictment”). Note that RCr 5.10 does not preclude the return of indictments for pardoned offenses — no *373doubt because, until today, no one ever assumed that a pardon could be granted for an uncharged offense.
During the period from May 25 to August 29, 2005, the special grand jury returned indictments against James L. Adams, Darrell D. Brock, Jr., Danny G. Druen, Tim Hazlette, Charles W. Nigh-bert, Cory W. Meadows, Richard L. Mur-gatroyd, Basil W. Turbyfill, and Robert W. Wilson, Jr., all officers or employees of the Commonwealth, charging them with violations of the merit system statutes. Most, if not all, of the indictees were afforded the opportunity (subpoenaed) to appear before the grand jury before indictment to explain or deny the allegations against them. According to statements attributed to their attorneys, most, if not all, declined the invitation by invoking the privilege against self-incrimination. U.S. Const, amend. V; Ky. Const. § 11.
On August 5, 2005, Governor Fletcher advised the press that his office was engaged in “high-level discussions” about possible pardons for the indictees, but that such was only “hypothetical” at that time. Ryan Alessi & Jack Brammer, Fletcher Pardon Talks “Hypothetical”, Lexington Herald-Leader, Aug. 6, 2005, at Al. One indictee, Nighbert, who was then acting as Transportation Cabinet Secretary (and has since been promoted by Governor Fletcher to permanent Transportation Cabinet Secretary), was quoted as saying that he would decline a pardon because he wanted to “prove my innocence in court.” Id. However, on August 29, 2005, Nighbert executed the following document, which is on file in the office of the Secretary of State:
APPLICATION FOR PARDONS
I, Charles W. “Bill” Nighbert personally and in my official capacity as Acting Secretary of the Kentucky Transportation Cabinet, hereby request the exercise of the gubernatorial power of pardon as to myself, James L. Adams, Darrell D. Brock, Jr., Danny G. Druen, Tim Hazlette, Cory W. Meadows, Richard L. Murgatroyd, Basil W. Turbyfill, Robert W. Wilson, Jr., and any and all persons who have committed or may be accused of committing, any offense arising from or relating to the current state merit system investigation being conducted by the special grand jury presently sitting in Franklin County, Kentucky and the Office of the Attorney General, including but not limited to KRS Chapter 18A and provisions of the Kentucky Penal Code.
/s/-
CHARLES W. “BILL” NIGH-BERT
08/29/05_
Date
On that same date, Governor Fletcher executed Executive Order No.2005-924, also on file with the Secretary of State, which reads as follows:
PARDONS
TO WHOM IT MAY CONCERN
WHEREAS, on May 25, 2005, the Franklin Circuit Comí ordered the em-panelment of a special grand jury to investigate merit system employee hiring in the Kentucky Transportation Cabinet; and
WHEREAS, the merit system law has not been materially or significantly changed since its original enactment in 1960; and
WHEREAS, the dispute arising out of these matters is one of public policy *374which is better addressed in the political arena, and not the courts;4 and
WHEREAS, the best means of correcting any deficiencies in the state merit system is through the legislative and administrative process; and
WHEREAS, other proper and legal means exist to fully investigate any allegations relating to employment decisions, and to provide redress to any Kentuckian who believes that a mistake may have been made in an individual circumstance; and
WHEREAS, the continuation of criminal proceedings sought by the Attorney General would have no effect on the circumstances of any individual who may have been excluded from employment;5 and
WHEREAS, Section 77 of the Constitution of Kentucky grants authority to the Governor of the Commonwealth of Kentucky “to remit fines and forfeitures, commute sentences, grant reprieves and pardons”; and
WHEREAS, in all aspects of my life I have been guided by a desire for justice and basic human decency, and by these actions that I take today, I believe that justice will be served.
NOW, THEREFORE, in consideration of the foregoing, and by virtue of the authority vested in me by Section 77 and related provision in the Constitution of the Commonwealth of Kentucky, I, ERNIE FLETCHER, Governor of the Commonwealth of Kentucky, do hereby grant a full, complete, and unconditional pardon to James L. Adams, Darrell D. Brock, Jr., Danny G. Druen, Tim Ha-zlette, Charles W. Nighbert, Cory W. Meadows, Richard L. Murgatroyd, Basil W. Turbyfill, Robert W. Wilson, Jr., and any and all persons who have committed, or may be accused of committing, any offense up to and including the date hereof, relating in any way to the current merit system investigation being conducted by the special grand jury presently sitting in Franklin County, Kentucky and the Office of the Attorney General, including but not limited to any violation of KRS Chapter 18A, all statutes within the Kentucky Penal Code, and in particular KRS 18A.095, KRS 18A.111, KRS 18A.140, KRS 18A.990, KRS 522.020,6 KRS 502.020,7 KRS 506.030,8 KRS 506.040,9 KRS 506.070,10 *375KRS 506.080,11 KRS 524.050,12 or KRS 524.100.13 The provisions of this Order shall not apply to Ernie Fletcher, Governor of the Commonwealth of Kentucky.14
/s/-
ERNIE FLETCHER, Governor Commonwealth of Kentucky /s/--
TREY GRAYSON Secretary of State
In a press release accompanying the pardons, the Governor characterized violations of the merit system statutes as “the equivalent of conspiring to commit noodling out of season.”15 Press Release, Governor Ernie Fletcher’s Commc’n Office, Governor challenges Attorney General to join him in moving Kentucky forward (Aug. 29, 2005).
Indictee Brock and attorneys representing three other indictees subsequently advised members of the press that they had not requested pardons. Associated Press, Resistance to Pardons Gives Way to Thanks for Fletcher’s “Courage’’, Lexington Herald-Leader, Sept. 1, 2005, at B8. On August 30, 2005, Governor Fletcher appeared before the grand jury in response to a subpoena, stated his name, address, and position of employment, then invoked his constitutional privilege against self-incrimination. Jack Brammer & Ryan Alessi, Fletcher takes Fifth with Grand Jury, Lexington Herald-Leader, Aug. 31, 2005, at Al.
On September 30, 2005, the grand jury returned indictments against Daniel Groves and Vincent Fields for violations of the merit system statutes. On October 20, 2005, the grand jury returned indictments against David Disponett and J. Marshall Hughes for violations of the merit system statutes.16 There is no evidence that any of the indictees ever formally accepted the purported pardons.
On October 24, 2005, the Governor filed a motion that the Franklin Circuit Court instruct the special grand jury that (1) the “amnesty” granted by the Governor pardons every individual within the class of persons described in the Executive Order, whether or not the person is named in the Order and whether or not that person was *376indicted prior to the issuance of the pardon; (2) the individuals 'within the class of persons covered by the “amnesty” have been fully and unconditionally pardoned, whether or not they have formally accepted the pardon; (3) the grand jury may not indict pardoned persons solely for the purposes of naming them in a report; (4) the pardon legally “obliterates” the offense, so pardoned conduct that preceded the pardon is no longer an indictable offense and, therefore, cannot constitutionally form the basis for an indictment; and (5) the grand jury may not issue a general report discussing the testimony or other evidence presented to it. In other words, the grand jury may continue to investigate the allegations of merit system violations ad infi-nitum, but may never reveal the identities of the persons found to have committed any violations. Presumably, the report could refer to these unidentified perpetrators as, e.q., “Unindicted Co-conspirator No. 1,” etc.
The Franklin Circuit Court correctly declined the invitation to hamstring the grand jury’s investigation by permitting the Governor to use his pardoning power to cover up alleged wrongdoing by members of his administration. It did, however, dismiss the indictments, some on motions of the indictees, others sua sponte. The Court of Appeals correctly denied the Governor’s petition for a writ of mandamus, CR 76.36(1), which sought to force the Franklin Circuit Court to instruct the grand jury pursuant to his requests. The Governor then appealed the denial of the writ to this Court as a matter of right. Ky. Const. § 115; CR 76.36(7)(a). Remarkably, a majority of this Court now holds that the grand jury “must be advised that it has no authority to issue indictments against persons named in the pardon or persons falling within the class specified in the pardon.” JUSTICE JOHNSTONE’s lead opinion apparently would also hold that the grand jury’s final report may not identify pardoned or unin-dicted individuals. Ante, at 364.17 I dissent from these holdings because:
(1) A pardon does not “obliterate” either an indictment or guilt, but only relieves the pardonee of the criminal consequences of his offense;
(2) The requirement that a pardon be accepted requires some overt act of acceptance and is not presumed from a mere failure to reject;
(3) Section 77 of the Constitution of Kentucky does not authorize a Governor to issue pre-indictment pardons;
(4) Section 77 requires that a pardon be premised upon a personal application therefor, and only one of the pardoned defendants, Nighbert, personally applied for a pardon;
(5) The application requirement precludes the issuance of “blanket pardons” of unidentified perpetrators of unidentified offenses;
(6) This particular pardon is invalid in part because it purported to pardon persons not yet indicted and persons who have never applied for a pardon, and under Kentucky law, a pardon that is invalid in part is invalid in toto;
(7) Grand jury investigations are not “legal proceedings,” but only the precursors of legal proceedings, which are com*377menced by a formal accusation or charge, e.g., the return of an indictment; and
(8) A grand jury report can name persons accused of criminal conduct so long as the grand jury specifies that there is probable cause to believe that such person engaged in that conduct.
II. PARDONS.
We begin with the proposition that, in a republic, the power to pardon is not an inherent power of the executive. The power is in the people who delegate it to the executive by way of constitutional provision and who may attach conditions to its exercise. Moore v. City of Newport, 198 Ky. 118, 248 S.W. 887, 838 (1923). See also Laird v. Sims, 16 Ariz. 521, 147 P. 738, 738 (1915); State v. Dunning, 9 Ind. 20, 23 (1857); Jamison v. Flanner, 116 Kan. 624, 228 P. 82, 87 (1924).
Article II, section 2, clause 1, of the United States Constitution, dealing with the powers and duties of the President, closes with these words:
[A]nd he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
Thus, there are no stated conditions or restrictions on the president’s pardoning power except that the power may not be used to prevent an impeachment. The genesis of this exception was the case of the Earl of Danby, Treasurer of England, who was impeached in 1678 for offering neutrality to France in exchange for substantial payment in direct contravention of Parliament’s desire to raise funds for a war against France. During the course of the impeachment proceedings, Charles II pardoned Danby for the offense, thus precluding the impeachment (and the introduction of any evidence that the King may have been complicit in Danby’s act). Nida & Spiro, supra note 14, at 203-04; Hugh C. Macgill, The Nixon Pardon: Limits on Benign Prerogative, 7 Conn. L.Rev. 56, 61 (1974) (“[T]he genesis of the exception was the Danby problem, the use of a pardon to block legislative investigation of executive misconduct by means of impeachment.”). Resultantly, Parliament provided in the Act of Settlement, 12 & 13 Will. Ill, ch. 2, § 3 (1700), that a royal pardon could not be pleaded in bar of impeachment. Mac-gill, supra, at 58 & n. 14. In light of the facts of this case, it is pertinent to note Justice Story’s explanation for the impeachment exception:
The power of impeachment will generally be applied to persons holding high offices under the government; and it is of great consequence that the President should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, if they should deserve it. The Constitution has, therefore, wisely interposed this check upon his power, so that he cannot, by any corrupt coalition with favourites, or dependents in high offices, screen them from punishment.
3 Joseph Story, Commentaries on the Constitution of the United States § 1495 (1833).
Indeed, the chief objection to conferring the pardoning power on the president was the fear that the president might use that authority to shield the president’s confederates in treason. The Federalist No. 7f, at 408-09 (Alexander Hamilton) (E.H. Scott ed. 1898); W.H. Humbert, The Pardoning Power of Presidents 18 (1941). Some foreign governments, even some that could hardly be described as republican in nature, have adopted constitutions that specifically preclude the head of state from pardoning his own ministers. Constitution of the Kingdom of Belgium, art. 73 (1831) (“[The King] shall have the right to remit *378or to reduce the sentences pronounced by the judges, save those who are decreed regarding the ministers.”); Constitution of the Kingdom of Prussia, art. 49 (1850) (“The King shall have power to pardon, and to mitigate punishment. But in favor of a minister condemned for his official acts, this right can only be exercised on the motion of that Chamber whence his impeachment emanated. Only in virtue of a special law can the King suppress inquiries already instituted.”); Constitution of the United States of Brazil, art. 48, § 6 (1889) (“to pardon and commute penalties in cases of crimes subject to federal jurisdiction, except cases of impeachment and crimes committed by ministers of state”).
As we learned from President George H.W. Bush’s pardons of the Iran-Contra indictees, supra note 3, the fears of the critics of the pardoning power were ultimately realized. In fact, some commentators have speculated that the real motive for the Iran-Contra pardons was, as in Danby’s case, to cover up the president’s own complicity. Peter M. Shane, Presidents, Pardons, and Prosecutors: Legal Accountability and the Separation of Powers, 11 Yale L. & Pol’y Rev. 361, 403-04 (1993) (suggesting that the Bush pardons involved an attempt by the President to cover up his own questionable activities); Harold Hongju Koh,18 Begging Bush’s Pardon, 29 Hous. L.Rev. 889, 889-90 (1992) (“Thus, for Bush, like the defendants he pardoned, the issue was ... whether he had himself partaken in the manifest abuse of constitutional authority that this affair represented.”); James N. Jorgensen, Note, Federal Executive Clemency Power: The President’s Prerogative to Escape Accountability, 27 U. Rich. L.Rev. 345, 346 (1993) (“For perhaps the first time in United States history, an executive pardon may have been motivated by the self-interest of a president who halted criminal proceedings in order to suppress information concerning his own conduct.”).
The United States Supreme Court first interpreted the pardoning power granted by Article II in United States v. Wilson, 32 U.S. (7 Pet.) 150, 8 L.Ed. 640 (1833). In that opinion, Chief Justice Marshall established four principles with respect to the operation and effect of a presidential pardon: (1) a pardon exempts the person upon whom it is bestowed from punishment for the crime pardoned; (2) a pardon is of no effect unless it is accepted by the person pardoned and (3) brought to the attention of the court in which it is sought to be enforced; and (4) a pardon is subject to judicial review and interpretation.
A pardon is an act of grace, proceeding from the power intrusted [sic] with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed; it is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court.
It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case of which he is not informed judicially; a private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown, and cannot be acted upon....
... A pardon is a deed to the validity of which delivery is essential, and delivery is not complete without acceptance; it may then be rejected by the person to whom it is tendered; and if it be reject*379ed, we have discovered no power in a court to force it to him.
It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital case and in misdemeanors....
[The pardon] may be absolute or conditional; it may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought judicially before the court, by plea, motion or otherwise.
Id. at 160-61 (emphasis added) (footnotes and quotations omitted).19
A. Punishment.
Poena tolli potest, culpa perennis erit (The punishment can be removed, but the crime remains).
United States v. Noonan, 906 F.2d 952, 960 (3d Cir.1990).
The Governor’s primary assertion, and one that the majority of this Court erroneously adopts, is that the grand jury cannot issue indictments because “the pardoned conduct no longer constitutes a criminal offense,” Appellant’s brief, at 18, i.e., it has been “obliterated.” See Governor’s requested instruction to the special grand jury No. 4, supra. The Governor grounds this position on dictum in Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1866), that “when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.” Id. at 380, 18 L.Ed. 366. However, the “blots out” statement was directly contradicted by a later statement in Burdick v. United States, 236 U.S. 79, 35 S.Ct. 267, 59 L.Ed. 476 (1915), that a pardon “carries the imputation of guilt; acceptance a confession of it.” Id. at 94, 35 S.Ct. at 270. See Bjerkan v. United States, 529 F.2d 125, 128 n. 2 (7th Cir.1975) (noting Burdick ⅛ departure from the Garland dictum). In fact, the holding in Garland was that refusal to permit the pardoned attorney to practice law before the Supreme Court (the only issue in Garland) would imper-missibly punish him for the pardoned offense (joining the Confederacy), not that the offense had been “blotted out.” In re North, 62 F.3d 1434, 1437 (D.C.Cir.1994). Garland decided only that:
The effect of this pardon is to reheve the petitioner from all penalties and disabilities attached to the offence of treason, committed by his participation in the Rebellion. So far as that offence is concerned, he is thus placed beyond the reach of punishment of any kind.
Garland, 71 U.S. at 381, 18 L.Ed. 366 (emphasis added). See also Noonan, 906 F.2d at 958 (characterizing Garland’s “blots out” statement as dictum rejected by Burdick). Other courts have characterized the “blots out” statement as mere metaphor. In re Abrams, 689 A.2d 6, 19 (D.C.1997) (“[B]ut metaphors cannot appropriately be used to justify a conclusion which would follow logically only if the metaphor were not a figure of speech but an accurate description.”); People ex rel. Prisament v. Brophy, 287 N.Y. 132, 38 N.E.2d 468, 470 (1941) (same).
A law review article authored by Professor Williston put the Garland dictum to rest, concluding:
*380Thus, the fact of conviction after a pardon cannot be taken into account in subsequent proceedings. However, the fact of the commission of the crime may be considered. Therefore, although the effects of the commission of the offense linger after a pardon, the effects of the conviction are all but wiped out.
Samuel Williston, Does a Pardon Blot Out Guilt?, 28 Harv. L.Rev. 648, 653 (1915) (emphasis added). “The fundamental distinction suggested by Professor Williston has been generally accepted and followed by the courts since the date of his article.” Damiano v. Burge, 481 S.W.2d 562, 565 (Mo.Ct.App.1972). “The parties have not cited, and our research has not disclosed, a single decision by any federal, state, or other court ... which has rejected Professor Williston’s reasoning.” Abrams, 689 A.2d at 11. Until today.
In Noonan, the Third Circuit canvassed cases from the British Commonwealth (the origin of the pardoning power in United States jurisprudence) and determined that English law also holds that a pardon does not “blot out” guilt. 906 F.2d at 959-60. See, e.g., R. v. Foster, (1985) 1 QB 115, 129 (“[The effect of the pardon] was to remove the criminal element of the offense named in the pardon, but not to create any factual fiction, or to raise the inference that the person pardoned had not in fact committed the crime for which the pardon was granted.”). A pardon “neither takes away the guilt [n]or washes out the moral stain.” Anglea v. Commonwealth, 51 Va. (10 Gratt.) 696, 1853 WL 3250, at *4 (1853). It “secures against the consequences of one’s acts, and not against the acts themselves; it involves forgiveness, not forgetfulness.” United States v. Swift, 186 F. 1002, 1017 (N.D.Ill.1911). For the same reasons, a pardon does not “blot out” the existence of an indictment. North, 62 F.3d at 1437.
Our own cases are in accord.
But it cannot wipe out the act that he did, which was adjudged an offense. It was done, and will remain a fact for all time. Notwithstanding the extensive language used in Ex parte Garland, supra, and In re Deming, supra, [10 Johns. 232] and that which we have used, there are limits to the effect of such a pardon.
Nelson v. Commonwealth, 128 Ky. 779, 109 S.W. 337, 338 (1909) (quotation omitted). Thus, while a pardoned offense may not be punished, such does not preclude an accusation that the offense was committed-— and the admission of guilt that flows from the acceptance and assertion of the pardon. See also Parson v. Commonwealth, 112 S.W. 617, 617 (Ky.1908) (“The pardon of the Governor did not restore the character of the witness in so far as it was besmirched by the commission of the felony of which he was convicted.”).
B. Acceptance.
In upholding the validity of a conditional pardon, it was said in Ex parte Wells, 59 U.S. (18 How.) 307, 15 L.Ed. 421 (1855):
[I]f the condition upon which alone the pardon was granted be void, the pardon must also be void. If the condition were lawful, but the prisoner did not assent to it, ... he cannot have the benefit of the pardon ....
Id. at 312, 15 L.Ed. 421. In Burdick v. United States, the United States Supreme Court again reaffirmed the requirement of acceptance, explaining that since a pardon “carries the imputation of guilt; acceptance a confession of it,” 236 U.S. at 94, 35 S.Ct. at 270, one to whom a pardon is offered may prefer to maintain his innocence and reject the “escape by confession of guilt implied in the acceptance of a *381pardon.” Id. at 90-91, 35 S.Ct. at 269.20 See also State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061, 1063 (1941) (“[A]s the very essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt.” (Citations and quotations omitted.)); Cook v. Bd. of Chosen Freeholders, 26 N.J.L. 326, at *4 (N.J.1857) (“Pardon implies guilt. If there be no guilt there is no ground for forgiveness. It is an appeal to executive clemency. It is asked as a matter of favor to the guilty. It is granted not of right but of grace. A party is acquitted on the ground of innocence; he is pardoned through favor.”). It is this admission of guilt and its attendant opprobrium that underlies the requirement of acceptance and belies the holding of JUSTICE JOHNSTONE’s opinion that accep-tanee is presumed from the absence of rejection.21
An unsolicited pardon or amnesty issued by the executive does not become effective automatically. It must be accepted by the one to whom it is issued before it can operate as a waiver of his right to contest his guilt.
Marino v. I.N.S., 537 F.2d 686, 692 (2d Cir.1976). Another reason for requiring acceptance is that it estops the person pardoned from later asserting that a condition attached to the pardon is invalid. Schick v. Reed, 419 U.S. 256, 267, 95 S.Ct. 379, 385, 42 L.Ed.2d 430 (1974) (“It would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily as*382sumed in accepting the commutation which he sought.”).
Historically, acceptance has been found in one of three ways in this country. The first is by the government seeking and obtaining an explicit acceptance. This is the most prevalent practice and was followed in the case of President Ford’s pardon of Richard Nixon. Secondly, a pardon or commutation may prescribe a condition precedent to be performed by the individual. The Civil War pardons required the taking of an oath of allegiance as a condition to the operation of the pardon.
There is a third, somewhat murky area of acceptance: if other rights are dependent upon the pardon or commutation and are asserted. The best examples of this are the Civil War cases in which persons claimed property seized by the government as the result of the offenses for which they had been pardoned and relied upon the pardons to reclaim their property.
Leonard B. Boudin, The Presidential Pardons of James R. Hojfa and Richard M. Nixon: Have the Limitations of the Pardon Power Been Exceeded?, 48 U. Col. L.Rev. 1, 32-33 (1976) (footnotes and quotations omitted).
Prior to pardoning former president Nixon, President Ford, specifically relying on Burdick, sent a secret emissary to Nixon to ensure that the latter would accept an offered pardon in terms that admitted guilt. Nixon agreed and issued an acceptance that included the language: “I made errors of judgment and mistakes that violated criminal statutes and resulted in criminal prosecutions.” Benton Becker,22 The History of the Nixon Pardon, 30 Cumb. L.Rev. 31, 41 (1999-2000).
Acceptance is also an essential requisite to effect an executive pardon in Kentucky. Adkins v. Commonwealth, 232 Ky. 312, 23 S.W.2d 277, 280-81 (1929) (“A pardon is a deed to the validity of which delivery and acceptance are essential.” (citing Wilson )).23 I have found no authority for the proposition that acceptance is presumed from a failure to reject.24 In State ex rel. *383Barnes v. Garrett, 135 Tenn. 617, 188 S.W. 58 (1916), the Supreme Court of Tennessee noted that “the court can neither know of the grant of a pardon nor presume its acceptance unless the facts are brought before it by motion, plea, or otherwise.” Id. at 60 (emphasis added). See also In re Fredericks, 211 Or. 312, 315 P.2d 1010, 1015 (1957) (en banc) (“It is true that the Governor may pardon an offender by virtue of his constitutional power in that behalf, but even that is not effective, unless it is accepted by the prisoner to whom the pardon is offered.”) (quoting Carpenter v. Lord, 88 Or. 128, 171 P. 577, 580 (1918)); cf. In re Victor, 31 Ohio St. 206 (Ohio 1877) (holding that acceptance of commutation by insane prisoner not required because a commutation is not a pardon).
C. Attention of the Court.
Although courts are bound to take judicial notice of proclamations of general amnesty, which have the force of public law, Jenkins v. Collard, 145 U.S. 546, 560-61, 12 S.Ct. 868, 873, 36 L.Ed. 812 (1892), they do not take judicial notice of executive pardons. Wilson, 32 U.S. at 160-61, 8 L.Ed. 640; Eighmy v. People, 78 N.Y. 330, 333 (1879) (citing Wilson); Garrett, 188 S.W. at 60. The same rule was applied under English common law. People v. Corning, 2 N.Y. 9, 9 (1848) (“At common law it was held that the courts were not bound to take judicial notice of a pardon procured by the king’s letters patent, but that it was otherwise in the case of a pardon by act of parliament.”). A person relying on the king’s pardon was required to specially plead it, and if he failed to do so and allowed himself to be put on trial under a plea of not guilty, he was deemed to have waived the pardon. 4 William Blackstone, Commentaries on the Laws of England *401.
The correct rule, gathered from the authorities, may be thus stated: The court does not take judicial notice of individual pardons. When one relies upon a pardon issued to him individually to reheve him from prison or for any other purpose he must in some way and in some proceeding call it to the attention of the court. The manner and the nature of the proceeding in which it is called to the attention of the court are not material. When the court’s attention is called to the pardon it will not inquire into the motives which prompted the pardoning *384official to issue the pardon, for to do so would be to usurp the pardoning power; but the court will inquire into the authority of the pardoning official to issue the particular pardon in question, will inquire as to whether fraud was practiced upon the pardoning official, if that be suggested, though on that point much care must be exercised, and there is some division of authority on how that question may be raised, will examine the pardon to see that it is valid upon its face, and if it is conditional will inquire as to whether or not the conditions have been complied with.
Jamison v. Flanner, 116 Kan. 624, 228 P. 82, 85 (1924) (citations omitted). “A pardon has been described as a ‘plea in bar,’ comparable to the statute of limitations.” Abrams, 689 A.2d at 10. In Kentucky, a formal plea is unnecessary; the pardon need only be called to the attention of the court. Jackson v. Rose, 223 Ky. 285, 3 S.W.2d 641, 643 (1928); Powers v. Commonwealth, 110 Ky. 386, 61 S.W. 735, 737 (1901). However, implicit in the holding in United States v. Wilson is that “only the individual affected may bring the pardon to the attention of the court.” Mark Strasser, The Limits of the Clemency Power on Pardons, Retributiyists, and the United States Constitution, 41 Brandéis L.J. 85, 110 (2002). It is apparent from these authorities that a pardon takes effect only after a particular person is formally accused of a particular offense and calls the court’s attention to the pardon as a defense to prosecution or, if after conviction, punishment. Thus, the Franklin Circuit Court should not have dismissed any of the indictments sua sponte. As will be discussed further, infra, a pardon issued prior to a formal accusation that initiates legal proceedings is invalid.
D. Judicial Review and Interpretation.
As stated in Jamison v. Flanner, quoted above, a court, upon being presented with a purported pardon, has authority to “examine the pardon to see that it is valid upon its face.” Jamison, 228 P. at 85. “A commutation of sentence may be effected by the Governor only by his acting in formal compliance with terms of section 4 of Article IV of the [New York] Constitution and the implementing statutes. There is no showing of formal compliance here.” People ex rel. Reynolds v. Martin, 3 N.Y.2d 217, 165 N.Y.S.2d 26, 144 N.E.2d 20, 23 (1957). The following are some examples of why pardons have been declared invalid:
• Failure to comply with the requirement that either (1) notice be given prior to its issuance in the county where the crime was committed, or (2) include in the pardon a statement that such notice was not given. Horton v. Gillespie, 170 Ark. 107, 279 S.W. 1020, 1024-25 (1926).
• Failure of the person seeking remission of forfeiture to forward to the Governor with his application the opinion of a majority of the officers of the county where the forfeiture occurred attesting to the propriety of doing so. State v. Dunning, 9 Ind. 20, at *3-4 (1857).
• Failure of the person seeking the pardon to give notice of the application for pardon to the district judge or county attorney where the offense occurred, or by formal publication. Jamison, 228 P. at 99.
• Failure to obtain the recommendation of the Board of Pardons. Rich v. Chamberlain, 104 Mich. 436, 62 N.W. 584, 586 (1895).
Historically, Kentucky courts have also examined the validity of executive pardons. The most famous instance arose out of the contested gubernatorial election of 1899. *385The three candidates for governor were William S. Taylor, William Goebel, and John Young Brown. On the face of the returns, the board of elections certified the Republican, Taylor, and his lieutenant governor candidate, John Marshall, the winners, and they were sworn into office. The Democrat, Goebel, and his lieutenant governor candidate, J.C.W. Beckham, filed an election contest before the Democrat-controlled legislature. On January 30, 1900, Goebel was mortally wounded on the capítol grounds by a gunshot fired from the Secretary of State’s office. On February 2,1900, the legislature declared Goebel and Beckham to have been the winners of the election. Goebel was sworn in as governor before he died on February 3, 1900. Beckham was sworn in as Governor after Goebel’s death. However, in defiance of the legislative declaration, Taylor retained possession of the executive building, archives, and records, and continued to act as governor. Taylor v. Beckham, 108 Ky. 278, 56 S.W. 177, 177-78 (1900). Ultimately, our predecessor court held that the legislative determination that Goebel and Beckham had won the election was “conclusive of the controversy.” Id., 56 S.W. at 184.
Meanwhile, Taylor, Secretary of State Caleb Powers, and others were indicted for conspiracy to the murder of Goebel. Powers was brought to trial in March 1900. John Young Brown (the third gubernatorial candidate in the 1899 election) served as one of his defense attorneys. On March 10, 1900, during the course of the trial, Taylor purported to issue an executive pardon of Powers. The trial court refused to recognize it. On appeal, the Court of Appeals held that Taylor was not the de jure governor of Kentucky on March 10,1900, thus the pardon was invalid. Powers v. Commonwealth, 110 Ky. 386, 61 S.W. 735, 737-38 (1901).
In Adkins v. Commonwealth, our predecessor court declared a pardon invalid because it had been procured by fraud. Adkins, 23 S.W.2d at 280. (Even the former governor who issued the pardon joined the action as a party plaintiff.)
It is not the right of the Governor to issue the pardon that is in question, nor is there an interference or usurpation by the courts with his constitutional powers in that regard. To declare the pardon invalid is in effect but to deny the accused of all legal right thereunder and to prevent him from taking advantage of the wrong which he has practiced on the commonwealth.
Id.
Finally, it is elementary that a person cannot be pardoned for conduct that has not yet occurred or of which the chief executive is unaware.
And if it is improper — and constitutionally impermissible — to pardon an offense which has not yet been committed, it is no more proper to pardon an offense which is not yet known to have been committed.... Knowledge of the commission of the offense must exist before the specific intent to pardon it can be formed; it is on that intent that the validity of a pardon depends.
Macgill, supra, at 84 (footnote omitted). And that, of course, is one reason why a pardon issued before formal accusation is invalid.
Even prior to Kentucky’s 1890 Constitutional Convention, discussed at length infra, our predecessor court held that, while a pardon could issue prior to conviction, it could not issue until after the pardoned person had been formally charged with the offense to be pardoned.
A fine or forfeiture cannot be remitted until it has either been adjudged or the offense shall have been so charged and defined, in some judicial procedure for *386enforcing its legal penalty, as to identify it, and make the remission effectual as a bar to any other prosecution for the same act. And the power of pardon is certainly as comprehensive as that of remission, and may be more so. But, in all cases alike, the exercise of the executive prerogative of remission or pardon relieves from the offense, and discharges the accused from its legal penalty; and this may be done as well and effectually before as after formal conviction.
Commonwealth v. Bush, 63 Ky. (2 Duv.) 264, 265 (1865) (emphasis added). President Ford’s pardon of Richard Nixon prior to indictment provides no precedent to the contrary; the only court challenges to the validity of that pardon were dismissed for lack of standing “to challeng[e] the pardon on behalf of the public.” McCord v. Ford, 398 F.Supp. 750, 754-55 (D.D.C.1975); Koffler v. Ford, Civil No. 74-1406, slip op. (D.D.C. Sept. 25, 1974) (discussed in McCord ).25 The Nixon pardon has been accurately characterized as an anomaly. Macgill, supra, at 72. Nor can Adkins be cited as authority for the proposition that a pre-indictment pardon is valid. While the attempted pardon in Adkins was, as here, issued prior to indictment (presumably because the governor was leaving office the next day), 23 S.W.2d at 277, the pardon was, in fact, issued after formal charge and a preliminary hearing finding probable cause. Id., 23 S.W.2d at 278. See discussion in Part v. of this opinion, infra, of when criminal proceedings are instituted so as to trigger the right to exercise the pardoning power. Regardless, our predecessor court did not address that aspect of the pardon’s validity but declared the pardon invalid because it had been procured by fraud. Id., 23 S.W.2d at 280.26
As pointed out in the passage quoted supra from Commonwealth v. Bush, another reason there can be no pre-indictment general pardon is that, otherwise, the pardoned person could not plead the pardon as a bar to double jeopardy. Other reasons include (1) to assure that the pardon will be given effect only with respect to the offense intended to be pardoned, and (2) to protect the citizenry against executive irresponsibility. For these reasons, there has always existed the requirement of specificity.
General words have also a very imperfect effect in pardons. A pardon of all felonies will not pardon a conviction or attainder of felony; (for it is presumed the king knew not of those proceedings) but the conviction or attainder must be particularly mentioned ....
4 Blackstone, supra, at *400.
The Framers of the U.S. Constitution considered three restrictions on the pardoning power, in addition to the impeachment restriction, and rejected all three, indicating an intent to give the president the same pardoning prerogatives that had been afforded the kings of England. Macgill, supra, at 82-83.
[TJhey conferred upon the President such powers as the King of England had enjoyed, but no more. Specificity in the language of pardons, sufficient to ap*387prise all concerned of the offenses intended to be pardoned, and evidencing the grantor’s knowledge of such offenses, was a due process limitation upon a power subject to no substantive restriction. The very character of the limitation was consistent with the tenor of the Convention’s work, to secure and confirm the protections from executive irresponsibility their parliamentary predecessors had won in the preceding century. No modification was suggested at the Convention; the limitation [of specificity] can be presumed to have been imported into the presidential pardoning power of Article II.
Id. at 88.
If a completely general pardon may be granted, it might lead to extensive abuses. For instance, such a pardon might be framed for “any and all crimes committed by persons later found to have authorized” a certain grievous act.
Boudin, supra, at 35. Compare the pardon language of Governor Fletcher’s Executive Order 2005-924, viz: “any and all persons who have committed or may be accused of committing, any offense up to and including the date hereof, relating in any way to the current merit system investigation being conducted by the special grand jury .... ” Obviously, Executive Order 2005-924 does not satisfy the requirement of specificity or even indicate knowledge of the specific offenses being pardoned. In that respect, the attempted pardon is invalid. Under Kentucky law, an attempted pardon that is invalid in part is invalid in toto. Hamilton v. Commonwealth, 458 S.W.2d 166, 166 (Ky.1970).
III. AMNESTIES.
In England, only Parliament had the right to grant amnesties, sometimes referred to as “general pardons.”
All pardons of treason or felony are to be made by the king, and in his name only ....
General pardons are by act of parliament ....
Edward Coke, Institutes of the Laws of England 233. The king could only issue pardons “within his prerogatives” or with the consent and approval of parliament. Max Radin, Legislative Pardons: Another View, 27 Cal. L.Rev. 387, 391-92 (1939). Nevertheless, the broad language of Article II of the United States Constitution has been held to include the power to grant amnesties. United States v. Klein, 80 U.S. (13 Wall.) 128, 147, 20 L.Ed. 519 (1871). That however, does not deprive Congress of the concurrent right to grant amnesties. Brown v. Walker, 161 U.S. 591, 601, 16 S.Ct. 644, 648, 40 L.Ed. 819 (1896).
[Amnesty and pardon] are of different character and have different purposes. The one overlooks offense; the other remits punishment. The first is usually addressed to crimes against the sovereignty of the state, to political offenses, forgiveness being deemed more expedient for the public welfare than prosecution and punishment. The second condones infractions of the peace of the state. Amnesty is usually general, addressed to classes or even communities,a legislative act, or under legislation, constitutional or statutory,-the act of the supreme magistrate.
Burdick, 236 U.S. at 94-95, 35 S.Ct. at 270-71.
Amnesties are general pardons given to relieve an entire class of citizens and are frequently granted for political offenses. Boudin, supra, at 2 n. 13; Black’s Law Dictionary 83 (7th ed.1999). Presidential amnesties have generally been granted to reward wartime service or to forgive insurrection. To show how rarely and how *388specially executive amnesties have been granted, consider the following list of all twenty-nine presidential amnesties granted in the history of the United States, by and to whom granted, and the nature of the action (all but the last are listed in Vol. 118, Cong. Record S9256 (daily ed. June 13,1972)):
July 10, 1795, Washington; whiskey Insurrectionists (several hundred); general pardon to all who agree to obey the law thereafter.
May 21, 1800, J. Adams; Pennsylvania Insurrectionists; prosecution of participants ended; pardon not extended to those indicted or convicted.
Oct. 15, 1807, Jefferson; deserters given full pardon if they surrendered within four months.
Feb. 7, 1812, Oct. 8, 1812, June 14, 1814, Madison; deserters given full pardon if they surrendered within four months.
Feb. 6, 1815, Madison; Barrataria pirates (Jean Lafitte’s men) who fought in War of 1812 pardoned of all previous acts of piracy for which any suits, indictments, or prosecutions were initiated.
June 12, 1830, Jackson (War Department); deserters, with provisions: (1) those in confinement returned to duty; (2) those at large under sentence of death discharged, never again to be enlisted.
Feb. 14, 1862, Lincoln (War Department); political prisoners paroled.
Mar. 10, 1863, Lincoln; deserters restored to regiments without punishment, except forfeiture of pay during absence.
Dec. 8, 1863, Lincoln; full pardon to all implicated in or participating in the “existing rebellion” with exceptions and subject to oath.
Feb. 26, 1864, Lincoln (War Department); deserters’ sentences mitigated, some restored to duty.
Mar. 26, 1864, Lincoln (clarification of Dec. 8,1863, proclamation).
Mar. 11, 1865, Lincoln; deserters who return to post in sixty days, as required by Congress.
May 29, 1865, A. Johnson; certain rebels of Confederate States (qualified).
July 3, 1866, A. Johnson (War Department); deserters returned to duty without punishment except forfeiture of pay.
Sept. 7, 1867, A. Johnson; rebels— additional amnesty including all but certain officers of the Confederacy on condition of an oath.
July 4, 1868, A. Johnson; full pardon to all participants in “the late rebellion” except those indicted for treason or felony.
Dec. 25, 1868, A. Johnson; all rebels of Confederate States (universal and unconditional).
Jan. 4, 1893, B. Harrison; Mormons (Church of the Latter Day Saints); liability for polygamy amnestied.
Sept. 25, 1894, Cleveland; Mormons— in accord with above.
July 4, 1902, T. Roosevelt; Philippine Insurrectionists; full pardon and amnesty to all who took an oath recognizing “the supreme authority of the United States of America in the Philippine Islands.”
June 14, 1917, Wilson; 5,000 persons under suspended sentence because of change in the law (not war-related).
Aug. 21, 1917, Wilson; clarification of June 14,1917 proclamation.
Mar. 5,1924, Coolidge; more than one hundred deserters — as to loss of citizenship for those deserting since World War I armistice.
*389Dec. 23, 1933, F. Roosevelt; 1,500 convicted of having violated espionage or draft laws during World War I who had completed their sentences.
Dec. 24, 1945, Truman; several thousand ex-convicts who had served in World War II for at least one year.
Dec. 23,1947, Truman; 1,523 individual pardons for draft evasion during World War II based on recommendations of President’s Amnesty Board. (The Board reviewed the cases of 15,805 alleged offenders. Of the 1,523 pardoned, all had been convicted and had served part or all of their sentences.)
Dec. 24, 1952, Truman; ex-convicts who served in armed forces not less than one year after June 25, 1950 (Korean conflict).
Dec. 24, 1952, Truman; all persons convicted for having deserted their military positions between August 15, 1945, and June 1950.
Jan. 21, 1977, Carter; all persons who violated the Military Selective Service Act between August 4, 1964, and March 28, 1975 (Vietnam conflict). Proclamation 4483; Ex. Order 11967.
Viewed in the context of this historical record, Governor Fletcher’s attempt to characterize as an “amnesty” his attempted pardon of “any and all persons who have committed, or may be accused of committing, any offense relating in any way to the current merit system investigation” is simply absurd.
I have found no instance in the history of Kentucky where a Governor purported to unilaterally grant an amnesty. Some of the delegates to the 1890 Constitutional Convention mistakenly believed that Governor Thomas E. Bramlette, who held that office from 1863-67, had issued a general pardon, or granted clemency, to all former Confederate soldiers. 1 Debates of Constitutional Convention of 1890 (“Debates”) 1099 (A.J. Auxier, Pike, Martin, and Johnson Counties), 1115-16 (W.M. Beckner, Clark County). Others correctly recalled that Bramlette had only issued individual pardons to former soldiers who had been indicted for their wartime activities. Id. at 244 (John D. Carroll, Henry County). In fact, it was not Bramlette but the 1866 General Assembly that amnestied the Confederate soldiers by enacting “AN ACT to pardon all persons who have heretofore committed the crime of treason against the Commonwealth.” 1866 Ky. Acts, ch. 107. Governor Bramlette had requested the action, Governor’s Message to the General Assembly 12-13 (Dec. 4, 1865), no doubt recognizing that he, as governor, had no authority to issue a unilateral amnesty.27 *390Significantly, in that message Bramlette also said: “To forgive a man who does not ask it ... would be to offer a bounty to wrong,” id. at 13 (emphasis added), evidencing an understanding that a pardon of any kind must be premised upon individual application and acceptance. Bramlette did subsequently grant individual pardons to soldiers of both armies “who were charged by indictment, in the courts, for offenses alleged to have been committed by them as soldiers, while in the service, and during the war,” Governor’s Message to the General Assembly 4 (Adjourned Sess., Jan. 3, 1867) (emphasis added), evidencing his further understanding that an indictment is a condition precedent to an executive pardon.
IV. KENTUCKY CONSTITUTION SECTION 77.
The Governor’s pardoning power was defined in the Third (1850) Constitution of Kentucky as follows:
He shall have power to remit fines and forfeitures, grant reprieves and pardons, except in cases of impeachment. In cases of treason, he shall have power to grant reprieves until the end of the next session of the General Assembly, in which the power of pardoning shall be vested; but he shall have no power to remit the fees of the clerk, sheriff, or Commonwealth’s Attorney, in penal or criminal cases.
Ky. Const, art. Ill, § 10 (1850). '
On September 8, 1890, the delegates elected to the 1890 Constitutional Convention assembled in Frankfort to begin more than a year of deliberations and debates that would culminate in the approval of our present (1891) Constitution. Among those delegates were the then-sitting governor, Simon Bolivar Buckner, delegate from Hart County, and a former governor, J. Proctor Knott, delegate from Marion County. Their presence is mentioned because they were the only members of the convention to have ever exercised the pardoning power, and both opposed amending the language in Article III, § 10, of the 1850 Constitution. 1 Debates 1090-91, 1322. Nevertheless, the language was amended and the following was adopted as Section 77 of the 1891 Constitution (amen-datory language in bold face):
He shall have the power to remit fines and forfeitures, commute sentences, grant reprieves and pardons, except in cases of impeachment, and he shall file with each application therefor a statement of the reasons for his decision thereon, which application and statement shall always be open to public inspection. In cases of treason, he shall have power to grant reprieves until the end of the next session of the General Assembly, in which the power of pardoning shall be vested; but he shall have no power to remit the fees of the clerk, sheriff, or Commonwealth’s Attorney, in penal or criminal cases.
To understand the significance of the amendment, it is necessary to document both the constitutional environment in which the amendatory language was added and the debates that led to the amendment. “[I]n construing constitutional provisions, [the courts] will look to the history of the times and the state of existing things to ascertain the intention of the framers of the constitution and the people adopting it .... ” Posey v. Commonwealth, 185 S.W.3d 170, 192 (Ky.2006) (quoting Shamburger v. Duncan, 253 S.W.2d 388, *391390-91 (Ky.1952)). Further, “[i]t is a familiar aid in the interpretation of a provision of a constitution to examine the proceedings of the convention. If they clearly reveal the purpose of the particular provision the debates will be accepted as an indication of [their] meaning .... ” Id. at 190 (quoting Barker v. Stearns Coal & Lumber Co., 287 Ky. 340, 152 S.W.2d 953, 956 (1941)).
None of the first three Constitutions of Kentucky contained language identical to that found in Article II, section 2, clause 1 of the U.S. Constitution. Both the 1792 and 1799 Kentucky Constitutions contained the additional limiting language now found in Section 77 that reserves to the General Assembly the power to pardon treason. Ky. Const, art. II, § 10 (1792); Ky. Const, art III, § 11 (1799). The 1850 Constitution, quoted supra, added the limitation denying the power to remit the fees of the clerk, sheriff, or Commonwealth’s Attorney in penal or criminal cases.
As of 1890, only one of the forty-three state constitutions then enacted, Vermont’s, granted its governor a pardon power nearly as broad as that contained in Article II of the U.S. Constitution. But even Vermont denied its governor the power to pardon treason. Vt. Const, ch. 2, § 11 (1836).28 The Constitution of Connecticut granted its governor only the power of reprieve, not pardon.29 Conn. Const, art. IV, § 10 (1818). The power to pardon had been reserved to the General Assembly by the former colony’s charter of 1662.
The constitutions of seven states reserved to the legislature the right to determine how the governor’s pardoning power should be exercised.30 Sixteen state constitutions reserved to the legislature the right to adopt regulations with respect to applications for pardons.31 Five state constitutions established pardon boards to consider or approve pardons.32 Three state constitutions required the governor to obtain the advice and consent of council (presumably a form of pardon board).33 *392Two state constitutions required the governor to obtain the consent of the state senate.34 Four state constitutions required public posting of applications for pardons.35 Four state constitutions required the governor to report his pardons to the legislature.36
Most importantly to the delegates to the 1890 convention, the constitutions of thirty-four of thirty-nine states that granted pardoning power to the governor and did not reserve to the legislature the authority to regulate that power limited any exercise of the governor’s pardoning power to “after conviction.”37 Of the remaining five states, two, Pennsylvania and Rhode Island, withheld from the governor the power to act unilaterally. Pa. Const, art. IV, § 9 (1873) (requiring that the pardon be recommended in writing by the Lieutenant Governor, Secretary of the Commonwealth, Attorney General, and Secretary of Internal Affairs, or any three of them, and only after full hearing and due public notice and in open session); R.I. Const, art. VII, § 4 (1854) (requiring consent of the Senate). That left only three state constitutions, those of Delaware, Maryland, and Vermont, in addition to Kentucky, that did not limit the unilateral right of their governors to exercise the pardoning power to “after conviction.” There are no cases from Delaware, Maryland, Vermont, Pennsylvania, or Rhode Island even suggesting that their governors could validly issue a pre-indictment pardon under their constitutions. In fact, no state court has ever held that a pardon could be validly issued before indictment. Until today. Pertinent to the reasons the individual states declined to adopt or keep the broad pardoning power granted by Article II of the U.S. Constitution is the explanation in State v. Dunning, 9 Ind. 20 (1857), for the substantial restrictions placed on Indiana’s pardoning power by the Constitution of 1851:
The new Constitution differs from the old in few points more widely than upon this of the pardoning power. Two lines in the old, stood in the place of half a page in the new.... We know the object of the change. The granting of pardons, *393remissions, etc., had become an abuse and it was the intention to arrest that abuse.
Id. at 23.
Delegates to the 1890 convention were aware of the pardon provisions contained in other state constitutions, and a number of proposed drafts were premised upon other states’ provisions. E.g., “[W]hen I came to the Convention I was strongly inclined to give the Governor of Kentucky a Board of Pardons, as they have in other states.” 1 Debates 1091 (remarks of Delegate H. Cox, Carroll County). Delegate Curtis F. Burnam, Madison County, later commented on the number of state constitutions that limited gubernatorial pardons to post-conviction and the number of states that required presentation to the legislature of relevant facts that justified the pardon. Id. at 1247-49. Delegate Charles J. Bronston, Lexington, noted (mistakenly, it seems) that “there were but four States left in this Union of ours that have failed to incorporate these same provisions in their Constitutions. Those four states are Delaware, Georgia, Kentucky and Mississippi,” thereafter noting that the Constitution of Mississippi had been amended on November 1, 1890, leaving only three.38 Id. at 1328.
JUSTICE JOHNSTONE’S opinion states that “the pre-indictment pardon was not particularly debated at length” during the 1890 convention. Ante at 359. In fact, it was not debated at all.39 And for good reason: it would never have occurred to the delegates that a valid pardon could be issued before indictment or formal charge. The great debate at the convention was whether the constitution should be amended to preclude a pardon before conviction. The intent and understanding of the delegates that pardons would be granted only after formal charge and only upon application by the person seeking to be pardoned is apparent from the amendments they proposed and from the statements they made during the debates.
It should first be noted that there was substantial discontent with the notion of any power to pardon.
If there has been any one thing discussed more than another in the country from which I come, it is the exercise of this [pardoning] power by the Governor. Unintentionally, I have no doubt, but it has encouraged violations of the criminal law. Offenders against the criminal law, in every branch, have been pardoned, or fines and forfeitures have been remitted, as we all know....
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That [sentiment that the pardon power is abused and secretive] was repeated by the then distinguished Delegate from the county of Bourbon, Mr. Davis, who said:
I have heard such complaints ever since my boyhood, that the exercise of this power under our Constitution has *394been subject to some abuse, and some considerable abuse, too. I do not know how the present Executive has exercised this power to remit fines and forfeitures, and to grant pardons, but in a single instance, and that through publications in the newspapers; but for twenty-five years I have heard frequent and constant complaints of the abuse of this power ....
Id. at 1102-03 (remarks of Delegate Labon T. Moore, Boyd and Lawrence Counties). Delegate H.G. Petrie, Todd County, remarked:
I am utterly opposed to constituting the Governor of the State a Criminal Court. Take jurisdiction from the regularly organized Court and try cases upon ex parte testimony without even the sanction of an oath.... You cannot better destroy the confidence of the people of the State in the laws and institutions of our country than to take from their midst a man who has been accused of an atrocious crime, and without a hearing so far as they are concerned, and without their knowledge, pardon him, and he goes back a free man without any investigation .... Parties have a right to apply to him for pardons. A man accused of a crime comes with his friends and attorney, present to the Governor what they say are the facts in the case. They are influential men, they are the friends of the Governor. He cannot, without an insult to them, say: “I doubt what you say.” He cannot question the facts they present. He must act upon this ex parte statement for the accused man and his friends and relatives, and upon that he grants a pardon without any notice to the people of the community where the alleged crime occurred.
Id. at 1110 (emphasis added). Delegate J.T. Funk, representing the Seventh District of Louisville, remarked: “Let us throw every safeguard around the exercise of the pardoning power we possibly can ....” Id. at 1294. Delegate Bronston, the Commonwealth’s Attorney for Fayette County, noted:
Now, one single suggestion on the other branch of it and that is as to whether or not experience has taught us that there should be some limitation placed upon the pardoning power. Do not the people complain that too often the guilty has been pardoned, and by pardoning the guilty crime has been encouraged. If that has been the experience of the Delegates, the next question is what limitation shall be imposed.
Id. at 1089. Delegate George Washington, Campbell County, the president of the convention, was concerned about future corrupt governors:
I am opposed to lodging this great power in the hands of the Governor for several reasons. One of the first and most important of these reasons is its extreme liability to abuse. We may have just the kind of a Governor today that we ought to have and that we would like to have. What kind of a Governor we may have next year or in the future, no man is prophet enough to tell. It is not given to any man to penetrate the veil which conceals from our vision the future.... I can very easily conceive of a condition of circumstances when, in the agitation of the times, some man might be lifted to the Executive chair who is totally unworthy of it.... The very application for a pardon implies quilt. How is it going to be investigated? By what compulsory process shall he enforce the attendance of witnesses? How shall the peculiar circumstances surrounding each case be made to apply to it? I believe it has already been suggested by some gentleman that the examination would necessarily be ex *395parte; that one side in many instances would be entirely unheard.... To say that such a power as that is liable to abuse is simply to give expression to what is perfectly self-evident. It goes without saying.
Id. at 1112-18 (emphasis added). Thus, in addition to opposing the pardoning power, Delegate Washington also anticipated the U.S. Supreme Court’s recognition in Bur-dick, twenty-five years later, that application for a pardon confesses guilt; thus, the only person entitled to make such application is the person to whom the confession will be attributed. Certainly, one party cannot confess another’s guilt. Delegate J.G. Forrester, Harlan, Perry, Bell, and Leslie Counties, also expressed concern that a future governor might abuse the pardoning power:
I hope that this power will be taken from the Governor, not that I believe that he has exercised it wrongfully, but that he may do it hereafter. Some circumstances that we cannot foresee may actuate him to do it when it should not be done.
Id. at 1121. However, Delegate W.M. Beckner, Clark County, felt that future governors, elected by citizens cleansed by advances in education and Christian ideals, would be less likely to abuse the power than those in the past.
Gentlemen say it may be abused, but that is presuming that the Commonwealth will elect men unfit to exercise the power. I have faith that the people of the future will do better than they have done in the past, because there will be the influences of the Christian religion, and the power of a better system of education to improve the people of the future, and to make them better than the people of the past or of the present have been or are; and I take it for granted that the people of that greater future will elect better men even than the people of the past have done.
Id. at 1116. Finally, Delegate Burnam, anticipating the magnitude of the convention’s decision on this issue, expressed the hope of all: “But whatever the result of the vote may be, let us all hope the Commonwealth will not suffer wrong — ‘ne quid detrimentum respublica capiat.’ ” Id. at 1250.
On September 18, 1890, Delegate Bur-nam introduced a resolution that the Committee on the Executive prepare a report on an amendment to Article III, § 10, of the 1850 Constitution as to:
“whether the governor of this Commonwealth shall be permitted by the Constitution to pardon crimes before conviction of parties charged with same, and upon the propriety of establishment of a Board of Pardons .... ”
1 Debates 144 (emphasis added) (evidencing his assumption that no person would be pardoned before being charged). On September 23, 1890, Delegate J.M. Wood, Green and Taylor Counties, introduced the following resolution:
Resolved, That section 10, article 3, of the Constitution, be amended as follows: By adding to said section the words, “The Governor shall communicate to the Legislature, at the beginning of every session every case of fine or forfeiture remitted, or reprieve, pardon or commutation granted, stating the name of the convict, the cause for which he was convicted, the sentence, its date and the date of its remission, commutation, pardon or reprieve.”
Id. at 217 (emphasis added). On September 26, 1890, Delegate S.P. Hogg, Clay, Jackson, and Owsley Counties, introduced the following resolution:
Resolved, That the Governor shall have power to remit, after conviction, all *396forfeitures, fines and penalties, and grant reprieves and pardons, except in case of impeachment upon such condition and with such restriction as may seem proper, subject to such regulations as may be provided by law; and he shall communicate to the Legislature at each session thereof, each case of reprieve, remission of penalty, or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date of reprieve, remission of fine or pardon, and the condition, if any, upon which the same was granted.
Id. at 267 (emphasis added). This resolution contained three restrictions found in other state constitutions: (1) no pardon may be issued before conviction; (2) the legislature retains authority to determine how the pardoning power will be exercised; and (3) the Governor must report his pardons to the General Assembly at every session.
On November 7, 1890, Delegate Moore proposed to amend Article III, § 10 to add after “forfeitures” the words “[u]nder such rules and regulations as may be prescribed by law, and after conviction ... and ... [h]e shall indicate to the General Assembly at their regular session each case of reprieve, commutation of pardon granted, the reasons therefor, stating the name of the convict, time of sentence, its date, and the day of reprieve, commutation or pardon.” Id. at 1086-87 (emphasis added). This was the first proposal that would require the governor to state his reasons for the pardon.
On the same day, Delegate Bronston submitted the following proposed amendment:
The Governor shall have the power to grant reprieves, remissions, pardons and commutations of sentence after convictions for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper. Upon conviction of treason the Governor shall have power to suspend the execution of the sentence until the case shall be reported to the General Assembly at its next meeting, when the General Assembly shall either pardon, direct the execution of the sentence or grant a further reprieve. The Governor shall communicate to the General Assembly at the beginning of every session every case of reprieve, remission, pardon or commutation of sentence, stating the name of the person convicted, the crime for which he was convicted, the sentence, its date, the date of the pardon, reprieve, remission or commutation and the reason for granting the same; but the Governor shall have no power to remit the fees of the Clerk, Sheriff, or Commonwealth’s Attorney in penal or criminal cases.
Id. at 1087 (emphasis added). Under Bronston’s proposal, the General Assembly would not retain the right to determine how the pardoning power would be exercised, but the proposal would limit pardons to “after conviction” and require the Governor to report his actions to the General Assembly and give his reasons therefor. Moore then withdrew his amendment in favor of Bronston’s. Id. Bronston then suggested that the Governor be required to keep on file the petitions and letters on which he grants pardons or remissions, and furnish the same to the Legislature at its next session. Id.
On November 14, 1890, Delegate W.R. Ramsey, Laurel and Rockcastle Counties, proposed the following amendment to Bronston’s proposal:
Provided, however, That the General Assembly may, by law, constitute a Council, to be composed of officers of the *397State, without whose advice and consent the Governor shall not have power to grant pardons in any case, except such as may be left to his sole power.
Id. at 1250. Presumably, the “except” clause would allow the General Assembly to enact statutes giving the governor the power to grant unilateral pardons in certain cases.
Governor Buckner, who opposed the “after conviction” restriction,40 related an incident that occurred during his term of office in which a great disturbance arose in one county. He reported it to the legislature, which unanimously recommended that he exercise the “Constitutional power given to the Governor to pardon those under indictment.” Id. at 1090-91 (emphasis added). Thus, Buckner, like Bram-lette before him, evidenced an understanding that the pardon power existed only after indictment.
Though arguing against any restrictions on the governor’s pardoning power, Delegate Auxier also anticipated Burdick and further evidenced his understanding that each pardon would be premised upon an individual application by the guilty party:
Whenever a man applies to the Chief Executive for pardon, it is tacitly admitting that he is guilty. It is not the innocent man who applies to the Governor for pardon. It is the guilty man; it is the man who, by the strict and rigid rule and letter of the law, has been guilty of some violation of the law; and yet there are considerations connected with his offense that entitle him to Executive clemency.... If he is innocent, he does not have to apply to the Governor at all. It is presumed, if he is innocent, he can go before a Court and jury, and there vindicate himself, and establish his innocence. Consequently, there is no necessity for a pardon for an innocent man....
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... I believe it would be well enough, although no amendment of that kind has been offered, it might be a good thing to provide that in this Constitution, before any petition should be acted upon by the Governor, that the applicant for pardon should advertise in the county newspapers, where the offense was committed, at least two weeks, that he intended to make an application to the Governor for pardon, or if there be no newspaper in the county, that he advertise on the Court-house door for at least two or three weeks, so that his neighbors and acquaintances and civil authorities should have notice that application for the pardon was going to be made. Such a restriction as that I would be in favor of. That would give every citizen who is interested the power to send up a remonstrance against the exercise of this pardoning power, if they thought proper to do so.
Id. at 1096-98 (emphasis added). Auxier subsequently offered such an amendment. Id. at 1128. Auxier also referred to relieving “the defendant from the penalty of law,” id. at 1099 (emphasis added), indicating that any pardon would issue at the earliest after indictment.
*398Delegate Emery Whitaker, Mason County, also evidenced an understanding that a pardon would issue only to a guilty person and that a Governor could not unilaterally declare a person guilty by issuing a pardon before a grand jury indictment.
The argument seems to be, that a man is presumed to be innocent by the law (which is true) until he is proven to be guilty; and, therefore, whenever the Governor is asked to pardon before conviction, he is asked to say that the man is guilty without a trial, for none need pardon except the guilty, and that to pardon a man from a charge of crime is reversing the law, which presumes him to be innocent, because if innocent he needs no pardon. I look on that question in a different light from what it has been discussed. No man in the Commonwealth of Kentucky can be charged with crime save by a grand jury of sixteen men. That grand jury sit [sic] by themselves as the inquisitorial power sworn to do justice and right as much so as a petit jury when they try the question of guilt or innocence. They accuse a man of crime upon what? Not upon rumor, not upon their own volition, but upon legal testimony delivered to them upon the oaths of witnesses. Upon that they charge a man with crime.... You say he shall not have the power to pardon a man from what? From a charge of crime. That is what he is pardoned from,41 on proof which is competent and truthful that the man is not guilty.
Id. at 1104 (emphasis added). Whitaker also expressed his understanding of the nature of an application for a pardon.
Now, when a person presents his petition to the Governor, what does he present? Not a mere petition to be pardoned. He sets forth the circumstances that can be shown by reliable witnesses of the vicinage that there has been a mistake in the charge of crime against him, and he asks the Governor to excuse him.
Id. (Note that Nighbert’s application for pardon stated no reasons whatsoever.) Delegate James Blackburn, Woodford County, also expressed his understanding that the application for pardon would occur after formal charge: “How stands the case? A party is charged, either by warrant or indictment, with a violation of the law, a misdemeanor or a felony, if you please.” Id. at 1118 (emphasis added).
On November 8, 1890, P.P. Johnston, Fayette County, offered a proposed amendment that would subsequently be adopted in part:
Amend section 10 by inserting after the word “impeachment,” in the third line, the words, “And he shall file with each application a statement of the reasons for his decision thereon, which shall always be open to public inspection.”
Id. at 1123 (emphasis added). It seems no coincidence that this proposal followed closely on the heels of comments in the debate indicating that the delegates understood that the application would be made personally by the party seeking the pardon. In the debate over this provision, the delegates’ primary concern was the need for transparency, i.e., that the application furnish to the governor accurate informa*399tion and that the governor-furnish to the citizens the reasons for granting the pardon.
Mr. A. is charged with crime. He does not want the expense and disgrace of a trial. He goes to the Governor and makes to him certain representations. How is that Governor to know whether those statements are true or not? No witness is sworn; it is entirely ex parte; no one can be sworn. All the statements the Governor receives are those from friends of the accused, without the sanction of an oath....
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... It is my judgment that when twelve men out of sixteen have made a presentment, twelve other unbiased and unprejudiced men on their oaths, after a full investigation, say the accused is guilty beyond a reasonable doubt and the trial Judge approves of that finding, I say, when the Governor of the Commonwealth annuls that verdict and judgment he ought to have reasons for it and the people have a right to know those reasons.
Id. at 1261-62 (remarks of Delegate Joseph Blackwell, Owen County).
“Applications for clemency are almost universally ex parte statements, seldom giving the facts which were proved in the case, and very often are misrepresentations.”
Id. at 1268 (remarks of Delegate W.R. Ramsey, Laurel and Rockcastle Counties, quoting from Governor Buckner’s Message to the Legislature during its 1887 session).
What is the real evil as disclosed by the speeches made upon this floor? It seems to me to be this: That the Governor acts upon the statements coming from one side; that it is an ex parte proceeding. The accused or the convicted presents his side of the case, and, of course, he and his friends will present it as strong as they possibly can, and the other side is not heard.
Id. at 1289-90 (remarks of Delegate J.A. Brents, Clinton and Cumberland Counties).
On November 15, 1890, Delegate J.F. Montgomery, Adair County, offered the following proposed amendment of Article III, § 10:
The Governor shall, in each case of reprieve, remission, pardon or commutation of sentence, cause to be prepared a written statement of the reasons for granting the same, a record of which shall be kept by the Secretary of State in a book to be kept for that purpose as a public record, and a copy of said written statement shall be transmitted to the Court in which the prosecution is pending or judgment was rendered, which shall be filed and noted of record in said Court.
Id. at 1273 (emphasis added). Note again the invariant assumption that the pardon would not precede an indictment. In arguing in support of his amendment, Montgomery remarked:
The statements are often presented to the Governor of men of character and influence, who are personally known to him, and who are appealed to on account of their influence and their position, and they yield on account of their desire to curry favor with the person who makes the application ....
Id. at 1288 (emphasis added). Note again the assumption that the person seeking the pardon would make the application though third parties might speak in support of it. Likewise, in speaking in favor of his proposal, Delegate Bronston remarked:
An application is made to the Executive for a pardon. What does the Executive do? He says, “This citizen of the Com*400monwealth of Kentucky is charged with having violated a law. I must determine one of two things: first, upon the case as presented to me, is he guilty? Or if he be guilty, is it a case where I should exercise mercy?”
Id. at 1326 (emphasis added).
Bronston’s proposed amendment that would have included the “after conviction” language and the requirement of a report to the General Assembly failed by a vote of 41-36 (23 absent) — with both Governor Buckner and former Governor Knott voting “nay.” Id. at 1347. Johnston’s proposed amendment requiring the governor to “file with each application a statement of the reasons for his decision thereon which shall always be open to public inspection” was adopted, though the record of the debates does not reflect the yeas and nays. Id. at 1344. However, on November 22, 1890, Delegate George C. Harris, Simpson County, noted that under the adopted language the governor could destroy the application and thereby preclude the public from knowing on what grounds the application for pardon was premised. Harris moved to further amend the amended provision by inserting after the word “which” the words “application and statement.” 2 Debates 1520. The amendment was adopted, id. at 1520-21, thus completing the language of what is now Section 77. Former Governor Knott was absent when the vote was taken. Id. at 1521. Again, Governor Buckner voted “nay,” id., indicating that he considered the requirements of application and statement of reasons to be a new and additional restriction on the pardon power.42
From this detailed examination of the constitutional climate and the 1890 debates, I conclude that the convention delegates did not intend that the pardoning power be exercised before indictment or formal charge; that they did intend that each person seeking a pardon would submit his or her own individual application, stating the reasons therefor; that the governor would state written reasons for granting the pardon; and that the governor would retain together for public inspection both the application and the pardon. Posey, 185 S.W.3d at 190, 192. Absent the requirements of an indictment,an individual application, and specificity (as discussed in Part II-D of this opinion, supra), a governor could, upon application of, e.g., the lieutenant governor, avoid even the empaneling of a grand jury to investigate alleged corruption within the administration by simply issuing an executive pardon every Friday afternoon of “any and all persons in my administration who have committed, or may be accused of committing, any offense up to and including the date hereof, including but not limited to any violation of the Kentucky Penal Code and KRS [fill in the blank].”
Y. GRAND JURY INDICTMENTS AND REPORT.
The grand jury is an independent agency of constitutional origin. Hoskins v. *401Maricle, 150 S.W.3d 1, 18 (Ky.2004). Despite JUSTICE GRAVES’s assertions to the contrary in his opinion, the grand jury is not “controlled” by either the prosecutor or the convening court. Id. at 17-18. It is “an investigative body acting independently of either prosecuting attorney or judge.” United States v. Dionisio, 410 U.S. 1, 16, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973). “It acquired an independence in England free from control by the Crown or judges.” Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). “The grand jury’s functional independence from the Judicial Branch is evidenced both in the scope of its power to investigate criminal wrongdoing and in the manner in which that power is exercised.” United States v. Williams, 504 U.S. 36, 48, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352 (1992). Thus, “[t]he hallmark of the grand jury is its independence from outside influence.” Democratic Party of Ky. v. Graham, 976 S.W.2d 423, 426 (Ky.1998).
JUSTICE GRAYES’s broadside attack on our grand jury system in his separate opinion is both unfounded and ill-conceived. A grand jury not only returns indictments when it has probable cause to believe that a person has committed a criminal offense, it also exonerates without formal charge persons wrongly accused of criminal offenses. Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962). At an open-court hearing in the Franklin Circuit Court on October 27, 2005, the foreperson of the grand jury attempted to express the grand jury’s frustration at the criticism being directed its way by the Governor’s spokespersons and attorneys. Judge Graham wisely terminated the discussion; but the grand jurors do not need to hear the “ham sandwich” claim from a Member of this Court.43 I would also note that Governor Fletcher has never claimed that he issued his blanket pardon because the persons indicted or being investigated were innocent. As noted, supra, the very issuance of the pardon is a recognition of guilt. He apparently believed that the perpetrators should not be punished for their guilt by, e.g., loss of employment similar to the losses they perpetrated against their victims.
JUSTICE JOHNSTONE’S opinion asserts without any citation to authority that “[i]t is axiomatic that grand jury investigations and indictments are stages in the criminal prosecution of the offense itself.” Ante, at 363. Not so. Criminal proceedings are initiated “by way of formal charge, preliminary hearing, indictment, information or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (emphasis added).
The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the *402prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable.
Id. at 689-90, 92 S.Ct. at 1882 (emphasis added).
“There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings .... ”
Democratic Party, 976 S.W.2d at 426 (emphasis added) (quoting Costello, 350 U.S. at 362, 76 S.Ct. at 408, and Rice v. Commonwealth, 288 S.W.2d 635, 638 (Ky. 1956)). Thus, the grand jury does not conduct criminal proceedings; it initiates criminal proceedings by the return of an indictment.
“ ‘Indictment’ is a technical word, peculiar to Anglo Saxon jurisprudence and implies the finding of a grand jury, as does also the word ‘presentment.’ ” Rice, 288 S.W.2d at 637. It is “an accusation made in behalf of the people ... formed by the concurrence of nine or more grand jurors (Const. § 248) in proper session and is completed by a return or delivery to the court.” Nicholas v. Thomas, 382 S.W.2d 871, 872 (Ky.1964). Once an indictment is returned, criminal proceedings begin. It is at that point under Section 77 of the Constitution that a pardon may be granted and the legal proceedings interrupted — not before. Therefore, JUSTICE JOHN-STONE’S conclusion that a grand jury, especially this grand jury (because it is investigating alleged government corruption), must be instructed that it cannot return an indictment against a person purportedly pardoned by the governor is erroneous.
JUSTICE JOHNSTONE’S opinion contains another curious comment: “Common sense and courtesy dictate that, where the subjects of a grand jury investigation have been pardoned and no criminal prosecution of the alleged offenses could ever result, the jurors should be so informed.” Ante, at 364. In fact, the grand jurors were well aware of the existence of the attempted pardon. They were not sequestered and obviously were exposed to media reports. On October 27, 2005, the grand jury foreperson asked the presiding judge in open court whether the charge to the jury remained the same. Judge Graham responded:
Your charge remains exactly the same. There is a debate going on in light of the Governor’s general pardon that he has made pardoning everyone who has done anything to violate the merit system, except himself, up to a certain date. Lawyers in the case, lawyers representing the Governor and lawyers for the prosecution, have an important and substantial legal argument going on as to the effect of the general pardon, if any, on the power of the grand jury. This is a very important question that will be decided by the court later. If the court makes a determination that the general pardon has any effect upon your powers, I will take it upon myself to bring you back into court and so advise you.
In the course of the debate yesterday, the court was asked to instruct the jury that they do not have the power to bring indictments against anyone who has been pardoned. At that time, I decided not to do that because I still have questions in my own mind whether that is a correct statement of the law. I will have to decide that question, and we *403have a hearing scheduled to decide that question. They are going to take ten days to brief it, then I’ll decide the question. But I declined to tell you people to stop your proceedings until that time. I don’t know how you feel about that. I will just say that it is a substantial question that has been raised about the effect of the general pardon. If you feel, in light of the fact that the question has been raised, you want to refrain from taking action until that question is resolved, that is up to you. I am not telling you to do so.
Videotape of proceedings, Franklin Circuit Court, Oct. 27, 2005 (emphasis added).
JUSTICE JOHNSTONE’S opinion also seems to hold (erroneously, if so) that pardoned or unindicted persons cannot be identified in any report returned by the grand jury.44 That misconception presumably is premised upon a misreading of Bowling v. Sinnette, 666 S.W.2d 743 (Ky.1984), the case cited by the Governor for that proposition. In Bowling, a Boyd County grand jury returned a report indicating that four former sheriffs had engaged in practices contrary to statute, but did not return indictments against them “due to material evidence not being available for our consideration.” Id. at 744. Bowling did not hold that names of persons suspected of criminal activity could not be mentioned in the report absent the return of indictments against those persons. It held that the report could not “cast aspersions on citizens when the evidence before it is insufficient to persuade the members of the Jury that probable cause exists that an offense was committed.” Id. at 745.
Ordinarily, if the grand jury has probable cause to believe that a person has committed an offense, it will, indeed, return an indictment. However, because of the Governor’s purported blanket pardon, now abetted by a majority of this Court, the grand jury is precluded from issuing any indictments based on violations of the merit system statutes prior to August 29, 2005. That does not mean, however, that it does not have probable cause to believe that offenses were committed. If so, Bowling does not preclude a full and complete grand jury report that identifies the perpetrators, so long as the grand jury specifies that it has probable cause to believe that the persons named committed the offenses.
Dead kings of England would rise from their graves with huzzas if they knew that one (though only one) jurisdiction of the Anglo-Saxon legal tradition has finally espoused their cause and rolled back hundreds of years of anti-corruption jurisprudence, including the hard-won independence of the grand jury. “But history also has its claims.” Rosenberg v. United States, 346 U.S. 273, 310, 73 S.Ct. 1152, 1171, 97 L.Ed. 1607 (1953) (Frankfurter, J., dissenting). And history will not forget nor fondly remember the day that the Supreme Court of Kentucky put its imprimatur on a governor’s scheme to cover up alleged wrongdoing within his administration by granting a blanket pardon to all persons under investigation by a sitting grand jury.
Accordingly, I dissent.
WINTERSHEIMER, J., joins this opinion.. Since each Member of the Court has written a separate opinion, any reference herein to another opinion will identify the opinion by its author.
. E.g., by transferring the targeted employees to new workplaces great distances from their homes and families.
. Contrary to the assertion in JUSTICE GRAVES’s opinion, the Attorney General did not "initiate” the grand jury proceedings. He filed a motion that a special grand jury be empaneled to investigate the allegations of merit system violations. The Franklin Circuit Court granted the motion and initiated the proceedings by empaneling the special grand jury.
.This language is virtually identical to that used by President George H.W. Bush in his “Christmas Eve pardons” of former Secretary of Defense Caspar Weinberger, Assistant Secretary of State Elliott Abrams, former National Security Advisor Robert McFarlane, and three former Central Intelligence Agency officials (Duane Clarridge, Alan Fiers, and Clair George), all of whom had been indicted as participants in the so-called "Iran-Contra scandal”:
The prosecutions of the individuals I am pardoning represent what I believe is a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences. These differences should be addressed in the political arena ....
Proclamation No. 6518, 57 Fed.Reg. 62, 145 (Dec. 24, 1992).
. Presumably, the same reasoning could be used to justify the pardon of a murderer, i.e., punishing the killer will not return the victim to life.
. Official misconduct in the first degree.
. Complicity.
. Criminal solicitation.
. Criminal conspiracy.
. Incapacity of solicitee or co-conspirator. See id. (The fact that solicitee could not be guilty of crime solicited because of, e.g., criminal irresponsibility or unawareness of criminal nature of conduct, is no defense).
. Criminal facilitation.
. Tampering with witness.
. Tampering with physical evidence.
. Whether a Chief Executive can pardon him/herself has never been decided as such has never been attempted. Compare Robert Nida & Rebecca L. Spiro, The President as His Own Judge and Jury: A Legal Analysis of the Presidential Self-Pardon Power, 52 Okla. L.Rev. 197 (1999) with Brian C. Kalt, Note, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, 106 Yale LJ. 779 (1996).
. "Noodling” is the sport of catching rough fish, e.g., catfish, with one’s bare hands, arguably easier than luring the fish to take one’s bait. The noodling season is from June 1 to August 31. 301 KAR 1:075(6). Presumably, the Governor’s comparison of illegally terminating a classified employee to illegally fishing out of season derived from the classification of both offenses as Class A misdemeanors, see KRS 150.305(1); KRS 150.990(6), and not because he believes that fishing out-of-season is as serious an infraction as illegally terminating the employment (including health care benefits and, possibly, retirement benefits) of a citizen of the Commonwealth on the basis of his or her political affiliation.
.On May 11, 2006, during the pendency of this appeal, the grand jury returned an indictment against Governor Fletcher, charging him with three Class A misdemeanors: two violations of the merit system statutes, and official misconduct, KRS 522.020. Franklin Dist. Ct. Case No. 06-M-812 (May 11, 2006). See also, Tom Loftus & Mark Pitsch, Fletcher Indicted, The Courier-Journal, May 12, 2006, at Al.
. In. his separate opinion, JUSTICE SCOTT agrees (though with different reasoning) that the special grand jury can identify alleged perpetrators in its report. Thus, on that point, the holdings of the Franklin Circuit Court and the Court of Appeals are affirmed. SCR 1.020(l)(a) (“[I]f one member is disqualified or does not sit and the court is equally divided, the order or judgment appealed from shall stand affirmed.").
. Dean Koh is the current dean of Yale Law School.
. Although SPECIAL JUSTICE GREEN’s opinion argues that "acceptance” was not at issue in Wilson, ante, at 378, Chief Justice Marshall's opinion recites that the accused “waived and declined any advantage or protection which might be supposed to arise from the pardon,” 32 U.S. at 158, 8 L.Ed. 640 and that "he did not wish in any manner to avail himself, in order to avoid the sentence in this particular case, of the pardon referred to.” Id. at 158-59, 8 L.Ed. 640.
. SPECIAL JUSTICE GREEN’s opinion posits that Wilson and Burdick were effectively overruled by Biddle v. Perovich, 274 U.S. 480, 47 S.Ct. 664, 71 L.Ed. 1161 (1927). Ante, at 411. Biddle was a Certified Question of Law from the Eighth Circuit Court of Appeals, viz., whether the President could commute the death sentence of a convicted murderer to life in prison. The prisoner claimed the imposition of the life sentence was without his consent, thus the commutation should be construed as a full pardon. Id. at 485, 47 S.Ct. at 665. However, Biddle did not implicate the presumption of innocence (because the prisoner had already been convicted prior to the commutation) and should more likely be characterized as a departure from the statement in Ex parte Wells that rejection of the condition nullifies the pardon. The following language from Biddle flatly refutes the Special Justice’s claim: “We are of the opinion that the reasoning of Burdick v. United States is not to be extended to the present case.” Id. at 488, 47 S.Ct. at 666 (emphasis added) (citation omitted). To decline to "extend” implies the continued validity of Burdick’s holding.
Although the Special Justice correctly notes that the U.S. Supreme Court has not cited Burdick in a majority opinion since Biddle, Burdick has been cited in a concurring opinion for the proposition that a pardon requires acceptance. Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 486, 97 S.Ct. 2777, 2814, 53 L.Ed.2d 867 (1977) (Stevens, J., concurring). Of course, Biddle also has never been cited in a U.S. Supreme Court majority opinion, though it was cited in a dissenting opinion for the proposition that a commutation does not require acceptance. Schick v. Reed, 419 U.S. 256, 273, 95 S.Ct. 379, 388, 42 L.Ed.2d 430 (1974) (Marshall, J., dissenting). Regardless of the opinion of some commentators, see opinion of SPECIAL JUSTICE GREEN, ante, at 412 n. 3, neither the Nixon concurrence nor any of the U.S. Circuit Courts of Appeals that have cited Burdick as authority have cited it with a disclaimer that it was modified or overruled in part (or in any way affected) by Biddle. See, e.g., Hirschberg v. Commodity Futures Trading Comm’n, 414 F.3d 679, 682 (7th Cir.2005); North, 62 F.3d at 1437; Noo-nan, 906 F.2d at 958; Marino v. I.N.S., 537 F.2d 686, 692 (2d Cir.1976); Bjerkan, 529 F.2d at 128 n. 2; United States v. Fitzgerald, 235 F.2d 453, 454 (2d Cir.1956); Healey v. United States, 186 F.2d 164, 167 (9th Cir. 1951); Lupo v. Zerbst, 92 F.2d 362, 365 (5th Cir.1937); Czarlinsky v. United States, 54 F.2d 889, 893 (10th Cir. 1931).
. Burdick distinguished an executive pardon from a legislative grant of immunity, which requires no acceptance and carries no implication of guilt. 236 U.S. at 94, 35 S.Ct. at 270.
. Becker was, in fact, the emissary in question.
. Although SPECIAL JUSTICE GREEN’s opinion asserts that Adkins rejected the holding in Wilson as a "relic of the past,” ante, at 412, that quote is taken out of context. The portion of the Adkins opinion quoted in support of that assertion followed a quote from Blackstone that identified a restriction on the king’s pardoning power, viz:
It is a general rule that wherever it may reasonably be presumed the King is deceived the pardon is void; therefore any suppression of truth or suggestion of falsehood in a charter of pardon will vitiate the whole, for the King was misinformed.
Adkins, 23 S.W.2d at 279 (citing 4 William Blackstone, Commentaries 400). The “relic of the past” comment referred to the fact that the rule permitting judicial review of a pardon allegedly procured by fraud was even more pertinent to a purported pardon by the chief executive of a republican form of gov-eminent than by a king. Id., 23 S.W.2d at 279-80.
.JUSTICE JOHNSTONE’S opinion cites Redd v. State, 65 Ark. 475, 47 S.W. 119 (1898), Hunnicutt v. State, 18 Tex. Ct.App. 498 (Tex.Ct.App.1885), and Territory v. Richardson, 9 Okla. 579, 60 P. 244 (1900), for the proposition that "other courts have extended this reasoning to conclude that acceptance of a pardon is assumed, once brought to the court’s attention, absent proof indicating otherwise.” Ante, at 361. However, those cases are inapposite. Redd and Hunnicutt were appeals by criminal defendants of their convictions on grounds that key prosecution witnesses were incompetent to testify because, though each respective witness had been presented a pardon, they had failed to validly accept the pardons, thus rendering the pardons invalid and, therefore, the witnesses incompetent to testify. Redd, 47 S.W. at 122; Hunnicutt, 18 Tex. Ct.App., at *14. In each case the court held that, though the record *383did not contain direct evidence that the pardon was validly accepted, the fact that the witness was permitted to testify was sufficient circumstantial evidence that the pardon had been accepted (and, therefore, was valid) barring any evidence by the appellant to the contrary. Redd, 47 S.W. at 122; Hunnicutt, 18 Tex. Ct.App., at *14. In other words, the appellate court presumed that the lower court had obtained proof of acceptance. In Territory v. Richardson, the prosecution appealed the dismissal of a suit against the assistant cashier of a bank for receiving a deposit for a bank he knew was insolvent. Richardson, 60 P. at 244 — 45. The prosecution appealed the dismissal on grounds that the defendant had not accepted the pardon that had been issued by the Governor, which had formed the basis for the trial court’s dismissal. Id. The appellate court held that "it is sufficient [proof of acceptance] that the defendant brought the pardon to the notice of the court in his motion to dismiss.” Id. at 247. Again, the issue was not whether acceptance of a pardon may be presumed, but whether the defendant’s overt assertion of the pardon in support of his motion to dismiss in the trial court was adequate evidence on appeal that the pardon had been accepted (and was therefore valid). Id. In actuality, Richardson supports the view that a pardon must be specifically pled by the party wishing to avail him/herself of the pardon, discussed infra. See Richardson, 60 P. at 247 ("[T]he matter of pardon, when its benefits are sought, ‘must be in some manner brought judicially before the court, by plea, motion, or otherwise.’ " (quoting Wilson)). Manifestly, none of these cases stands for the proposition that acceptance is presumed from a mere failure to reject.
. Koffler was a law professor; McCord was one of the Watergate burglars.
. For the same reason, SPECIAL JUSTICE GREEN’S opinion’s reliance on Burdick, ante at 411, is misplaced. Burdick did not address the validity of a pre-indictment pardon but only the effect of a failure to accept same. But even if that were not so, the pardon in Burdick was issued under Article II, section 2, clause 1 of the United States Constitution, which is substantially less restrictive than Section 77 of the Constitution of Kentucky. As discussed in Part III of this opinion, infra, the United States Supreme Court has upheld the authority of the President under Article II to issue pre-indictment amnesties.
. SPECIAL JUSTICE GREEN’s opinion speculates that Bramlette did not issue an executive amnesty because joining the Confederacy was treason, which could only be pardoned by the General Assembly. Ante, at 410. However, on April 16, 1861, Governor Beriah Magoffin wrote to U.S. Secretary of War Simon Cameron, in response to President Lincoln's call for troops, that "Kentucky will furnish no troops for the wicked purpose of subduing our sister states.” 2 Samuel M. Wilson, History of Kentucky 308 (1928). On May 16, 1861, the General Assembly adopted a resolution "that the State and citizens thereof shall take no part in the civil war now being waged, except as mediators and friends to the belligerent parties; and that Kentucky should, during the contest, occupy the position of strict neutrality.” Lowell H. Harrison & James C. Klotter, A New History of Kentucky 188-89 (1997). For complete text of the resolution, see 1861 H.J. 191-92 (May 1861 sess.). The resolution was never rescinded. Since Kentucky maintained de jure neutrality during the war, it would have been hard-pressed to assert that supporters of the Confederacy were guilty of treason — regardless of the title given to the Amnesty Act. Furthermore, as noted infra in the text, Bram-lette did not hesitate to pardon Confederate soldiers who were charged by indictment in the courts for offenses alleged to have been committed by them as soldiers during the *390war. Thus, it seems more likely that he was acting upon a recognition that he could not pardon persons not yet formally charged rather than upon a recognition that he could not pardon treason.
. In discussing the constitutions of the various states prevalent in 1890, the date used will be the date on which the pardoning provision was adopted or last amended.
. In 1949, South Carolina amended its pardoning provision, S.C. Const, art. IV, § 11, to remove the pardoning power from its governor. Bearden v. State, 223 S.C. 211, 74 S.E.2d 912, 913 (1953).
. Ala. Const, art. IV, § 11 (1819); Ind. Const, art. V, § 17 (1851); Iowa Const, art. IV, § 16 (1857); Kan. Const, art. I, § 7 (1859); Or. Const, art. V, § 14 (1857); Va. Const, art. IV, § 4 (1830); Wash. Const, art. Ill, § 9 (1889).
. Ark. Const. § 18 (1874); Cal. Const, art. V, § 13 (1849); Colo. Const, art. IV, § 7 (1876); Fla. Const, art. V, § 12 (1868); Ga. Const, art. V, para. 12 (1877); III. Const, art. V, § 13 (1870); Mich. Const, art. V, § 11 (1850); Mo. Const, art. V, § 6 (1865); Neb. Const, art. V, § 13 (1866); Nev. Const. art. V, § 14 (1864); N.Y. Const, art. IV, § 5 (1846); N.C. Const, art. Ill, § 6 (1868); N.D. Const. § 76 (1889); Ohio Const, art. Ill, § 11 (1851); Wis. Const, art V, § 6 (1848); Wyo. Const, art. IV, § 5 (1889).
. Idaho Const, art. IV, § 7 (1890) (Governor, Secretary of State, and Attorney General); Mont. Const, art. VII, § 9 (1889) (Governor with approval of Secretary of State, Attorney General, and State Auditor); Nev. Const, art. V, § 14 (1864) (Governor, Justices of Supreme Court, and Attorney General); N.J. Const, art. V, §§ 9, 10 (1844) (Governor, Chancellor, and six judges of the Court of Errors and Appeals); S.D. Const, art. IV, § 5 (1889) (for pardon of capital offense, must have written recommendation of board of pardons consisting of presiding judge, Secretary of State, and Attorney General).
. Me. Const, art. II, § 19 (1851); Mass. Const. § 1, ch. 2, art. VIII (1780); N.H. Const, pt. 2, § 52 (1792).
. Miss. Const, art. V, § 10 (1832) (amended November 1, 1890, during the course of the Kentucky Constitutional Convention, to article V, § 124 (1890)); R.I. Const, art. VII, § 4 (1854).
. Idaho Const, art. IV, § 7 (1890) (notice of application to be published for four weeks); Md. Const, art. II, § 19 (1851) (notice to be published in one or more newspapers of application and of day on which decision will be made); Mont. Const, art. VII, § 9 (1889) (notice to be published in newspaper for two weeks); Pa. Const, art. IV, § 9 (1873) ("upon due public notice”).
. Cal. Const, art. V, § 13 (1849); Del. Const, art. Ill, § 9 (1831); Md. Const, art. II, § 19 (1851); Mo. Const, art. V, § 6 (1865).
. Ark. Const. § 18 (1874); Cal. Const, art. V, § 13 (1849); Colo. Const, art. IV, § 7 (1876); Fla. Const, art. V, § 12 (1868); Ga. Const, art. V, para. 12 (1877); Idaho Const, art. IV, § 7 (1890); III. Const, art. V, § 13 (1870); Ind. Const, art. V, § 17 (1851); Iowa Const, art. IV, § 16 (1857); La. Const, art. LXVIII (1879); Me. Const, art. V, pt. 1, § 11 (1820); Mass. Const. § 1, ch. 2, art. VIII (1780); Mich. Const, art. V, § 11 (1850); Minn. Const, art. V, § 4 (1857); Miss. Const, art. V, § 124 (1890) (see note 38, infra); Mo. Const, art. V, § 6 (1865); Mont. Const, art. VII, § 9 (1889); Neb. Const, art. V, § 13 (1866); Nev. Const, art. V, § 14 (1864); N.H. Const, pt. 2, § 52 (1792); N.J. Const, art. V, §§ 9, 10 (1844); N.Y. Const, art. IV, § 5 (1846); N.C. Const, art. Ill, § 6 (1868); N.D. Const. § 76 (1889); Ohio Const, art. Ill, § 11 (1851); Or. Const, art. V, § 14 (1857); S.C. Const, art. Ill, § 11 (1868); S.D. Const, art. IV, § 5 (1889); Tenn. Const, art. Ill, § 6 (1835); Tex. Const, art. V, § 11 (1845); Va. Const, art. IV, § 4 (1830); W. Va. Const, art. VII, § 11 (1872); Wis. Const, art. V, § 6 (1848); Wyo. Const, art. IV, § 5 (1889).
. While in the midst of a speech in support of limiting the pardon power only to after conviction and requiring the governor to report his pardons to the General Assembly, Delegate Bronston remarked that he had just been handed a copy of the new Constitution of Mississippi, adopted on November 1, 1890, in which Mississippi had adopted the "after conviction” requirement.
. In support of his claim that the delegates approved of the pre-indictment pardon, JUSTICE JOHNSTONE states that "little distinction would be drawn between a pardon prior to indictment versus a pardon prior to conviction, as both precede a legal determination of guilt.” Ante, at 360. As will be seen from their very words and the proposals they introduced, discussed infra, the delegates clearly understood that they were discussing only pardons issued after indictment or formal charge.
. Governor Buckner had served as a lieutenant general of the Confederacy. He led an army into Kentucky on orders of General A.S. Johnston in September 1861, penetrating as far as Rolling Fork Station, forty miles south of Louisville, and commanded a division in Bragg’s invasion of Kentucky, participating in the Battle of Perryville in October 1862. Ezra J. Warner, Generals in Gray 38 (1959); 2 Samuel M. Wilson, History of Kentucky 322-23 (1928). Thus, he was a direct beneficiary of the 1866 Amnesty Act as well as President Johnson’s general amnesty of September 7, 1867, and full pardons of July 4, 1868, and December 25, 1868.
. JUSTICE JOHNSTONE’s opinion quotes this sentence out of context, ante, at 360, misconstruing Whitaker's statement to mean that he "expressly advocated pardons prior to indictment.” Id. However, JUSTICE JOHN-STONE'S opinion omits from the quotation Whitaker's statement earlier in the same paragraph, viz., "No man in the Commonwealth of Kentucky can be charged with crime save by a grand jury of sixteen men.” 1 Debates 1104 (emphasis added). Thus, the full quote actually reaffirms the fact that pre-indictment pardons were not considered during the debates.
. JUSTICE JOHNSTONE'S opinion simply ignores the requirements of individual application and written statement of reasons, asserting: “The delegates of the Constitutional Convention ultimately declined to adopt any limitation as to when pardons could be issued. It is contrary to logic to recognize that the framers considered and rejected multiple amendments limiting the pardon power, but conclude that the framers intended that such limitations be implied nonetheless.” Ante, at 360. What is "contrary to logic” is the conclusion that the Framers of our 1891 Constitution intended that a governor could disable a grand jury investigation into alleged wrongdoing by members of his own administration by issuing a blanket pardon of unnamed individuals prior to indictment without any individual application by those allegedly pardoned. Section 77 was adopted to ensure public accountability by future governors in the exercise of a power so obviously susceptible to abuse.
. Following the return of the first three indictments, Lieutenant Governor Steve Pence told reporters that ''[t]he grand jury is a tool for the prosecutor,” and "you could get a ham sandwich indicted.” Mark Pitsch, Grand Jury Criticizes Comment by Pence, The Courier-Journal, July 1, 2005, at Bl. In response, a then-sitting Madison County grand jury issued a report that contained the following:
We are a truly independent body and, while working closely with prosecutors, base our decisions only on the facts and evidence presented and are not unduly influenced by them in our deliberations. We take our roles as Grand Jurors most seriously and are puzzled and slightly insulted by these broad and misguided generalizations.
Id.
. As noted supra, note 17, JUSTICE JOHN-STONE'S opinion is not the majority holding on this issue.