Stogner v. California, 539 U.S. 607, 18 (2003)

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Opinion of the Court

In sum, Clarendon's case involved Parliament's punishment of an individual who was charged before Parliament with treason and satisfactorily proved to have committed treason, but whom Parliament punished by imposing "banishment" in circumstances where the party was not, in "the ordinary course of law," liable to any "banishment." See supra, at 614. Indeed, because Clarendon had fled the country, it had become impossible to hold a proper trial to subject Clarendon to punishment through "ordinary" proceedings. See 19 & 20 Car. II, c. 2; Clarendon's Trial 385-386. To repeat, the example of Clarendon's banishment is an example of an individual's being punished through legislation that subjected him to punishment otherwise unavailable, to any degree, through "the ordinary course of law"—just as Chase and his predecessor Wooddeson said. Calder, 3 Dall., at 389, and n. ‡; 2 Wooddeson, Systematical View 638. See also Carmell, 529 U. S., at 523, n. 11.

A second problem that the dissent's account raises is one of historical completeness. That account does not explain how the second relevant example—the banishment of the Bishop of Atterbury—can count as an example of a recharacterization of a pre-existing crime. The dissent concedes that Atterbury was charged with conduct constituting a "conspiracy to depose George I." Post, at 647. It ought then to note (but it does not note) that, like the charge of " 'betraying his majesty's secret counsels,' " supra, at 622, this charge was recognized as a charge of treason, see 2 J. Stephen, A History of the Criminal Law of England 266- 267 (1883). As the dissent claims, the evidence upon which Parliament based its decision to banish may have been "meager," and the punishment may even have been greater than some expected. Post, at 647. But the relevant point is that Parliament did not recharacterize the Bishop's crime. Rather, through extraordinary proceedings that concluded with a punishment that only the legislature could impose,

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