Cite as: 539 U. S. 607 (2003)
Kennedy, J., dissenting
The principal objection raised against the impeachment charges was that they did not, under the law of the time, constitute treason. Id., at 342-346, 348-349, 350, 356-360, 367-372. The objection was not, it must be noted, that the charges were premised on innocent conduct. (If that were the nature of the objection, Justice Chase would have used the case to illustrate his first category, rather than his second one.) In fact, the impeachment explicitly alleged that Clarendon violated the law. See id., at 330-333. The objection made by Chase and by later legal scholars was that by the act of banishment the House sought to elevate criminal behavior of lower magnitude to the level of treason, thereby redefining what constitutes a treasonous offense. Even if Parliament assumed, on the basis of Clarendon's flight, that the allegations were true, see id., at 389-390, that constructive admission did not alter the fact that, under the laws of the time, the allegations could not support a charge of treason. By enacting the bill, Parliament declared these allegations sufficient to constitute treason. Some parliamentary colloquy suggested, moreover, that Clarendon was being punished for his flight, rather than for offenses alleged. See id., at 389 ("[I]t is plain, if you proceed upon this bill, you go not upon your impeachment, but because he is fled from the justice of the land"). A flight from justice was not considered an offense so severe as to warrant banishment, "the highest punishment next to death." Id., at 386. If the offense of flight was enhanced because of the prior offenses, then it was an increase in the gravity of the crime after its commission. Either way, the legislation increased the gravity of Clarendon's offense.
The bill passed against Clarendon accomplished what English common-law scholar Richard Wooddeson described as the danger against which the second ex post facto category was designed to guard. The bill "ma[de] some innovation, or creat[ed] some forfeiture or disability, not incurred in the ordinary course of law." 2 A Systematical View of the Laws
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