[41] A third form of penal servitude developed in Spain in the early modern era was the presidio sentence. The origins of this penalty are difficult to determine, since there is no mention of it in Spanish law until long after it had been in operation. Legal writers of the sixteenth century claimed that it originated from the same source as did service on the galleys and in the mines of Almadén, that is, from sentences ad metallum and in opus metalli as found in medieval Castilian law. Modern penologists believe that there were other elements in its historical evolution as well. ⁽¹⁾ Since the term presidio, derived from the Latin praesidium, means garrison or fort surrounded by protective walls, it is argued that this penalty also developed from the practice of keeping prisoners in custody in castles and fortresses in the Middle Ages. ⁽²⁾ In addition, banishment, which was widely utilized in the medieval period and the sixteenth century, represents another factor in the formation of this penalty. Significantly, all those who were condemned to the North African presidios were originally called desterrados (banished men), and this term was still in use in the eighteenth century. It seems likely that three different kinds of punishment, that is, banishment, confinement in a fortress or castle, and utilitarian service for the state, came together to form the presidio sentence. In the sixteenth century [42] the presidio sentence meant service at arms in the North African presidios for nobles and rich men. It was not until the middle of the seventeenth century, when it was extended to poor commoners, that it took the form of either hard labor or military service depending on class and wealth. By the opening of the eighteenth century there were two kinds of Prisoners: desterrados, who performed military service, and presidiarios, who were condemned to hard labor. ⁽³⁾

The last step in the evolution of the presidio sentence as a penalty in Spanish law resulted from Spain's expansion into North Africa at the beginning of the early modern era. The same strategic and defensive reasons that motivated Spain to build a powerful galley fleet in the Mediterranean in the sixteenth century also led to a policy of intervention in North Africa. Although Melilla was captured in 1497, it was not until after Queen Isabella's death in 1504 that a series of expeditions was launched across the Mediterranean. ⁽⁴⁾ This campaign left Spain in control of several important points along the coast (1505, Mers-e1-kebir: 1508, Peñón de Vélez; 1509, Oran), and in an excellent position to push into the interior. But the effort to penetrate the Magreb was not pursued, and the opportunity was soon lost as Moslem power in the region revived in the l520s and l530s. Two major expeditions against Tunis in 1535 and Mostaganem in 1558 did not alter the situation. After the failure at Mostaganem, the grandiose schemes for African expeditions did not completely disappear, but gave way to a policy of strengthening the positions held. The task of reinforcing and extending the fortifica- [43] tions of the coastal presidios began in the 1560s and continued for three centuries.

Despite the urgent need for workers, it appears that the building program of the sixteenth and first half of the seventeenth centuries was undertaken primarily by free labor. Diego Suárez, the soldier chronicler who spent twenty-eight years in Oran (1577-1604), does not mention penal laborers. In his day the heavy labor of the fortifications was done by gastadores (pioneers) recruited from all over Spain. ⁽⁵⁾ There does exist a decree issued by Philip II ordering the transfer to Oran of a contingent of forzados about to embark on the galleys at Málaga, but it is not known how often this was done. ⁽⁶⁾ Given the demand for rowers on the galleys, it seems unlikely that the Spanish monarchs would have been willing to commit penal workers to the presidios on a permanent basis. If men condemned to the galleys or forzados already serving there were sent to the presidios during this period, it was done as an emergency measure only. In the sixteenth century the North African presidios, in contrast to the galleys, were not places of punishment for the general criminal population. Instead, they served as places of deportation and exile for nobles who could not be sentenced to the galleys and wealthy commoners who bribed their way out of serving on them. Many examples of banished noblemen could be given: among them, the grandson of Columbus, Luis, Duke of Veragua, who was condemned to ten years in Oran for trigamy and died there in 1573. Other desterrados in Oran were Felipe de Borja, brother of the Master of Montesa, and Don Gabriel de la Cueva, son of the Duke of Albuquerque. ⁽⁷⁾

It has often been asserted that Spain did not adopt a policy of transportation of criminals as did other western European countries in the early modern era. ⁽⁸⁾ While this may be true in regard to the New World, it is not valid for North Africa. From the beginning, the North African presidios were authentic places of deportation (albeit for a select group) from which individuals were not expected to return. Cerdán de Tallada wrote in 1568 that it was common to sentence men to life terms at La Goleta and Oran during this period. ⁽⁹⁾ Later on, especially after the abolition of the galleys in 1748, the North African presidios became virtual penal colonies, where convicts drawn from all socioeconomic backgrounds worked for private [44] individuals as well as for the state. Furthermore, in the eighteenth century some prisoners remained after the completion of their sentences, especially if they had skills that were needed. ⁽¹⁰⁾ In view of these circumstances, the North African presidios can be considered a Spanish example of transportation.

The gradual transformation of the North African presidios from places of deportation and punishment for nobles and rich men into penal establishments for all convicted felons -- another version of the terrestrial galleys -- began around the middle of the seventeenth century. Little is known about this development, because the sources available for a study of the North African presidios as penal institutions in the seventeenth century are meager. ⁽¹¹⁾ It seems that the turning point occurred in the 1640's, and that several factors stimulated this change. The extension of Spain's network of presidios in the seventeenth century brought about an increased demand for soldiers and laborers. By the mid-seventeenth century Spain held Ceuta, Melilla, Oran, and Peñón de Vélez. In addition to these possessions, there were Larache and La Mamora, but they were retained only to the end of the century. ⁽¹²⁾ At the same time, Spain's military needs in Europe grew enormously as a result of participation in the Thirty Years War and the Catalan and Portuguese revolts at home. Coincidentally, widespread epidemics and subsistence crises in this period brought about a decline in Spanish population, particularly in New Castile and Andalusia, which meant that fewer men were available for military service. The manpower and financial crisis of the 1640s and 1650s provided the impetus for the conversion of the presidios into general penal establishments equivalent to the galleys. In 1653 and 1654, the king directed magistrates to sentence convicted felons to Melilla and Larache. ⁽¹³⁾ In 1658, condemned prisoners in the Madrid jails who were skilled in building were ordered sent to Oran, where they were urgently needed. Finally, in 1677, all prisoners sentenced to less than three years on the galleys were to be sent instead to La Mamora. At the time of its capture in 1687, the whole garrison at La Mamora was made up of desterrados. ⁽¹⁴⁾
 

Although it appears that the majority of convicts shipped to the presidios in the second half of the seventeenth century were destined to serve as soldiers at least most of the time, there were others sent [45] there exclusively as laborers on the fortifications. Yet sentences to hard labor in the North African presidios, in contrast to sentences of military service, still represented commutations of galley service. It was not until after the abolition of the galleys in 1748 that the presidio sentence to hard labor became a separate penalty apart from that of the galleys. By the end of the seventeenth century the North African presidios were well on their way to becoming full-fledged penal institutions, but their formal organization as such had to wait until the eighteenth century.

1. Fernando Cadalso, Principio de la colonización y colonias penales (Madrid: J. Góngora y Alvarez, 1896), p. 52; Cerdán de Tallada, Visita de la cárcel, p. 44; Códigos y leyes de España, pt. 7, title 21, law 4, p. 325.

2. Cadalso, Instituciones penitenciarias, p. 301.

3. For Spain's North African policy in the sixteenth century see Braudel, The Mediterranean, 2:854-65; and Andrew Hess, The Forgotten Frontier: A History of the Sixteenth-Century Ibero-African Frontier (Chicago: University of Chicago Press, 1978).

4. Hess, The Forgotten Frontier, pp. 39-43 and chs. 4-5.

5. Diego Suárez, Historia del maestre último que fué de Montesa y su hermano Don Felipe de Borja (Madrid: M. Tello, 1889), p. 27. In the eighteenth century the term gastador was used to describe convicts sentenced to hard labor on the fortifications. The new meaning was indicative of the change from a free to a penal labor force.

6. Henri-Leon Fey, Histoire d'Oran avant, pendant et aprés la domination espagnole (Oran: A. Perrier, 1858), p. 109.

7. Suárez, Historia del Maestre, pp. 107, 147, 161. For others, both nobles and wealthy commoners, see AHN, Consejos, Expedientes de Indultos, legs. 5575, 5576.

8. At the end of the fifteenth century there was some thought of using the newly discovered islands of the Caribbean for transportation purposes, but the idea was quickly abandoned in favor of a restrictive emigration policy. Transportation overseas to Spanish America was unnecessary for penal purposes until the galleys were abolished. For a description of an attempt to settle former presidiarios on the island of Puerto Rico in the last quarter of the eighteenth century, see pt. 2, ch. 4, below.

9. Cerdán de Tallada, Visita de la cárcel, p. 44.

10. For an elaboration of this point, see pt. 2, ch. 4, below.

11. Information can be found in AGS, Guerra Moderna, legs. 4696ù98; and AGS, Secretaría de Tierra, Miscelánea, legs. 3132-42.

12. The Peñón de Alhucemas was added in 1673.

13. AHN, Alcaldes de Casa y Corte, year 1653, f. 136; year 1654, f. 588. As early as 1642 the king ordered all soldiers absent without leave to return to their units within twenty days or face condemnation for life to El Peñón and Larache, where they would serve without pay.

14. Leon Galindo y de Vera, Historia, vicisitudes y poiltica tradicional de Espafla en las costas de Africa (Madrid: M. Tello, 1884), p. 275. For the decree of 1677, see AHN, Alcaldes de Casa y Corte, year 1677, if. 557-75; for the decree of 1658, ibid., year 1658, if. 29-30.