Cite as: 539 U. S. 607 (2003)
Kennedy, J., dissenting
house of lords shall be of opinion, either by consulting the judges or otherwise, that no treason is specially alleged, they should, notwithstanding any technical words, treat the of-fence as a misdemeanor." 2 Hallam, supra, at 413. Justice Chase could have viewed the betrayal of secrets charge in a similar way, as a subterfuge through which the Commons were trying to elevate Clarendon's offenses to the level of treason.
The proposed interpretation of Clarendon's example is reinforced by considering the proceedings against Bishop Francis Atterbury, who, in the midst of hysteria over both real and supposed Jacobite plots, was accused of conspiracy to depose George I. The evidence against Atterbury was meager, and supporters of the Crown, fearing that neither the common-law courts nor even the House of Lords would convict, introduced a bill of banishment. G. Bennett, Tory Crisis in Church and State, 1688-1730, pp. 258-265 (1975); Bishop Atterbury's Trial, 16 How. St. Tr. 323, 640 (1723) (re-print 2000) (hereinafter Atterbury's Trial). The bill declared Atterbury a traitor, and subjected him to a range of punishments not previously imposed, including exile and civil death. Id., at 644-646; Bennett, supra, at 265. The Duke of Wharton, who registered the lengthiest dissent, commented that "this Bill seems as irregular in the punishments it inflicts, as it is in its foundation, and carries with it an unnatural degree of hardship." Atterbury's Trial 691. The only bill of comparable harshness was the Act banishing Clarendon. Those sanctions were more mild, id., at 691-692, but, as we have seen, just as violative of the rule against penalties imposed after the fact. As in the case of Clarendon, Parliament adjudged Atterbury's offense to be so grave as to merit a singularly severe punishment. The bill designed vindictive forfeitures and disabilities not imposed in the ordinary course of law.
The Atterbury case illustrates again the close relationship between the second and the third Calder categories. See
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