642
Kennedy, J., dissenting
The Court, in any event, misunderstands the alternative description. As our precedents have instructed, this description must be viewed in the context of the history of the British parliamentary enactments to which Justice Chase referred. Ante, at 614; cf. Carmell, 529 U. S., at 526-530 (examining the historical circumstances of the case of Sir John Fenwick, cited by Justice Chase as an example of the fourth ex post facto category, in order "[t]o better understand the type of law that falls within that category"). With respect to the second category, Justice Chase provided two examples: the banishments of Lord Clarendon in 1667 and of Bishop Francis Atterbury in 1723. Calder, supra, at 389, and n. ‡ (citing 19 Car. II, c. 10; 9 Geo. I, c. 17). A consideration of both historical episodes confirms that Calder's second category concerns only laws which change the nature of an offense to make it greater than it was at the time of commission, thereby subjecting the offender to increased punishment.
Justice Chase and, it can be presumed, the Founders were familiar with the parliamentary proceedings leading to the banishment of the Earl of Clarendon. Clarendon, former Lord Chancellor and principal advisor to Charles II, was impeached by the House of Commons on charges of treason. Edward Earl of Clarendon's Trial, 6 How. St. Tr. 292, 330- 334, 350 (1667) (hereinafter Clarendon's Trial); G. Miller, Edward Hyde, Earl of Clarendon 20-21 (1983). The House of Lords, however, refused to commit Clarendon to trial, finding the allegations not cognizable as treason under the law. Clarendon's Trial 358, 367. With the two Houses deadlocked, Clarendon left the country, an exit wise for his safety, perhaps, but not for his cause. For upon his departure the impeachment was abandoned yet Parliament agreed on a bill banishing Clarendon for treason and imposing an extensive range of civil disabilities. Id., at 374, 385, 390-391.
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