644
Kennedy, J., dissenting
of England 638 (1792) (hereinafter Wooddeson). It was Wooddeson's interpretation of the English common law that Justice Chase relied upon. See Calder, 3 Dall., at 391; Carmell, supra, at 522-523, and n. 10; ante, at 614. The Court argues that the innovation deplored by Wooddeson was the imposition of a sanction (banishment) which, under settled law, was the prerogative of Parliament, not of the courts. Ibid. That may be so, but it cannot help the Court because this is not what California has done. Section 803(g) did not impose any punishment not otherwise contained in the California Penal Code. It did what legislatures have done throughout history: It specified when the criminal justice system may prosecute certain crimes. The majority tries to explain away this distinction as "not determinative," ibid., but it makes all the difference. By imposing on a particular offender a punishment not prescribed by the existing legal norms a legislature signals its judgment that the gravity of the offense warrants its special intervention. In contrast, by prescribing general rules for the adjudication of offenses the legislature leaves the determination of the offender's culpability entirely to the courts.
The majority's explanation of the English precedents, in all events, is not the most logical one. Justice Chase's alternative description covered enactments which "inflicted punishments, where the party was not, by law, liable to any punishment." Calder, supra, at 389. Though only a parliamentary Act could subject an individual to banishment in 17th-century England, Parliament's power to pass such Acts was unquestioned. See 11 W. Holdsworth, A History of English Law 569 (1938). A sanction of banishment was acknowledged as a punishment provided for by the existing laws, both at the time of Clarendon's trial and afterwards. See, e. g., Craies, Compulsion of Subjects to Leave the Realm, 6 L. Q. Rev. 388, 392 (1890) ("[B]anishment, perpetual or temporary, was well known to the common law"); An Act for Punishment of Rogues, 39 Eliz. 1, c. 4, s. 4 (1597) (permit-
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