I think our founders would be rather shocked at today’s prisons and the things people are locked up for.
The British in the 18th Century put a lot of prisoners on as many as 40 prison ships or gave them transportation. It gets stranger:
“Under English law, any Englishman could prosecute any crime. In practice, the prosecutor was usually the victim. It was up to him to file charges with the local magistrate, present evidence to the grand jury, and, if the grand jury found a true bill, provide evidence for the trial. If the victim of a crime won his case, the criminal was most often hanged or transported.
“Offenses fell into three categories according to their possible punishments: minor offenses, clergyable felonies, and non-clergyable felonies. Minor offenses such as petty larceny-theft of goods worth less than a shilling-were typically punished with punishments designed largely to shame the offender, such as public whipping or exposure in the stocks.
“The distinction between the second and third categories was whether or not offenders could claim benefit of clergy. Benefit of clergy originated as a legal rule permitting clerics charged with capital offenses to have their cases transferred to a church court, which did not impose capital punishment.
“By the 18th century, the application of the rule had changed in two important ways: The definition of clergy had been broadened to include anyone who could read (and, after 1706, any defendant whether or not he could read), and the church courts had lost their role in dealing with serious crimes. The result in many cases was that a defendant convicted of a capital felony could plead his clergy, be branded on the thumb, and be sent home.
“Many felons did not bring enough return to pay the merchant’s cost of transportation. The result was that felons who had been sentenced to transportation but whom nobody was willing to transport accumulated in jails intended as temporary holding places. After 1718, merchants were paid three shillings a head to transport.
“Still, the accumulation of prisoners waiting for transport created the idea of prisons themselves as punishment instead of just holding areas.”