648
Kennedy, J., dissenting
supra, at 639-640 (quoting Calder, 3 Dall., at 397 (Paterson, J.)). As already explained, supra, at 640-641, the Court's misconstruction of Justice Chase's historical examples takes the second category out of this logical continuum. Contrary to the majority's belief, ante, at 625, an interpretation which highlights the link between these two categories is more faithful to the original understanding. Richard Wooddeson, the Court's preferred commentator, discussed these two categories together, noting that both "principally affect the punishment." 2 Wooddeson 638-640; see also id., at 624.
Atterbury's trial also illustrates why the majority's interpretation of the historical examples as premised on the courts' inability to impose banishment is untenable. See supra, at 645-646. Had Atterbury been convicted of treason through the courts, he would have been subject to capital punishment. Parliament's decision to prosecute Atterbury may have been driven by fear of backlash provoked by a death sentence, for Atterbury enjoyed considerable popularity and sympathy in some circles. See Bennett, supra, at 259. Wooddeson speculated, in an observation in tension with the majority's interpretation, that Atterbury's sentence may have been motivated by a desire "of mitigating punishment." 2 Wooddeson 639. The mitigation, of course, was in comparison to the possible death verdict, not, as already explained, in comparison to the ordinary noncapital punishment Atterbury could have received.
Clarendon's and Atterbury's trials show why Stogner's case does not belong in Calder's second ex post facto category. The California Legislature did not change retroactively the description of Stogner's alleged offense so as to subject him to an unprecedented and particularly severe punishment. The offense is described in the same terms as before the passage of § 803(g); the punishment remains the same. The character of the offense is therefore unchanged; it is perceived by the criminal justice system in the same way as before, and punished with the same force. The only
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