THE AGRARIAN ISSUE AND THE SESMARIAL SYSTEM: BRIEF CONSIDERATIONS

Costa Porto (1965) opens the first chapter of the book "Study on the Sesmarial system" with a meaningful and insightful quote from Messias Junqueira. These words were rescued to initiate the development of this text:

The territorial history of our country begins with a paradox: before Brazil was discovered, lands already belonged to Portugal. (JUNQUEIRA apud PORTO, 1965, p. 13).

According to Porto, the period of the spreading through the sea, in the fifteenth century, Portugal had been the most favored by the generosity of the Roman pontiffs. At that time, the distribution of land was something divine and defined from the acts of the popes, the supreme commissaries of the fulfillment of God's laws.

Despite the disputes between Portugal and Spain over land ownership, assumed as existing and about to be discovered, with the Treaty of Tordesillas (1494) the matters were diplomatically resolved and the domains were established. Even before the revelation of its existence, in 1500, by Cabral, the lands of Vera Cruz shoreline, in Brazilian territory, already belonged to the Lusitanian Crown.

Land distribution in Brazil: the beginning of everything

What sets the beginning of the history between the Crown and the Colony seems to guide the development of Portugal actions in regard to Brazil. Without an accurate knowledge of the new domains specificities the royalty had defined the Colony directions. With this perspective took place the transposition of the land grant form through the use of the sesmarial resource, another paradox in the Brazilian territorial constitution. As shown by Porto (1965) a lack of observance to each territory particularities may have been one of the great problems that arose from the literal transposition of land distribution system for Brazil.

The reality found at the Vera Cruz lands was certainly different from that established in Portugal. According to the author, leaving a clear point of similarity: the existence of soil without culture, without exploiting, untapped (Porto, 1965, p.52). Furthermore, all the other points that guide the semarial grant in Portugal are quite distant from the Brazilian reality. The sesmarial application brought many problems at national lands. While at Don Fernando, Don João, and Don Duarte's Portugal the distribution of sesmarial land has generated, as a rule, the small property, in Brazil it was the main cause of the large estates (Porto, 1965, p.58-59).

The full transposition of a cultural system to another brings drastic consequences, and so it was with Brazil. The agrarian issues in this country have begun to operate simultaneously, which defines all the land distribution system revealing the wrong path followed and its consequences in contemporary times. Therefore understanding the sesmarial system is a decisive step in finding solutions to land democratization, in other words, the search for balance between the different actors that compose the rural universe, especially in Pará.

Sesmarias Law

The Sesmarias Law was enacted in Santarém, in 1375, during the reign of Don Fernando, the Handsome. Europe was experiencing a situation of economic crisis for several decades, aggravated by the black plague which decimated, especially the cities' population, since overcrowding promotes this disease to spread itself. From half of the fourteenth century and throughout the whole fifteenth century, it settles at the continent a wave of economic depression, forcing the decision-making, some drastic, in an attempt to reverse the situation by political and social reorganization. At this unstable and problematic context emerges the Sesmarias Law in Portugal.

One may consider that the main reason of the Sesmarias Law, and of those that have come from it, was the land culture for the provision of supplies for the population. On this regard, the law was very strict, even harsh, about the wasteland: lose the farm which goes the good of common place where you are (Porto, 1965, p. 28). The lord of the land had to work it directly or transferred the domain to another person by tenure, otherwise would be subject to having it confiscated by sesmeiro, which means, the land sharer and distributor.

The land obtained through the sesmaria is called sesmarial property (BENATTI, 2003) and its grant obeys the rules issued by the Sesmarias Law and sparsely regulated in the Ordinances. There are two requirements to be met by the requestor - demarcation and cultivation - to obtain confirmation. In Portugal, the demarcation was justified by the fact that there were many abandoned land as a result of the expulsion of the Moors which took place in the fourteenth century. Idle and unproductive, the cultivation was a way of occupying them and, at the same time, supply the requirements demanded by the consumer market, especially the cities and towns, dispossessed as they were, victimized by the economic crisis, especially, in the cities and the flow of negative consequences resulting from that.

In Brazil, the needs are of another order. Portugal needs to legitimize the appropriation of the discovered land, enforce that ownership in practical terms and, of course, get something out of it. Land exploitation begins 30 years after Cabral's stay with the institution of government land captains, through captaincy formalization. The rules for this government exercise, as well as operational rules for land distribution, contained in the Ordinances were characterized as being sparse and generic. To these aspects, which have hindered the observation of provinces organizational proposals, one can add the various laws emanating from the metropolis. The rulers and the court illustrious found themselves grappling with a tangle of issues, many of which are minor or insignificant to be raised, and others, that required greater attention, relegated to a secondary plane, if not ignored.

The agrarian issue in Brazil, if we credit its origins to sesmarias system, presents ambiguities from the beginning. It presents itself grounded and registered in basic legal principles, although scattered and widespread, at the Ordinances and marked by restrictions in regards to land use. However, these devices suffer from the overlay of habits and local transactional behavior, largely determined by peculiar Colony conditions. Also we must consider the origin of land beneficiaries, connected by class ties - most of them were nobles - to the king and by provided services, as well by the fact that the funding of this exploitation comes from bankers, including foreigners and an emerging wealthy class, as both the Crown and the nobility were undercapitalized.

Transplanted from Portugal to Brazil, by royal authority, the sesmarial system gets here accumulating standards originated in a context social, economic, political and legal entirely different. Portugal's history, attached to the Iberian Peninsula, out of a struggle as the one of the expulsion of the Arabs, catholic, aimed at conquest, living an expansionary period, keeper of maritime technology and workers, at that the time, highly qualified as demonstrated by their browsers, finds no parallels in Brazil. An alien culture to the new continent which, by its turn, is foreign to Portugal. What comes from Portugal, in terms of norms, rules, social treatment habits says nothing to the local inhabitant. Even to the few portuguese settled on land, as shown by Salvador (1982, p. 94), because they were men of little appreciation so few the services they provided to Your Highness and his honors.

To the standards and rules integrated into the body of ideals which configured the portuguese sesmarial institution were simply added measures imposed by the Crown for problems solution, some punctual, encountered in the Cologne everyday, others not quite so. These issues arise from social differences within and between metropolis and colony. That is, the rules emanating from Portugal struggled with some behaviors already established, others in the stabilization phase, in Brazilian society.

The absence of a specific regulation that could deal exclusively with the matter, since the regulations were scattered and widespread in the Ordinances, gave birth to a peculiar land grant regulation system that was actualized with the publication of organization charters, ordinances, permits and charters. This situation made rule enforcement difficult, facilitated lack of rules compliance on one hand, and abuse in its application on the other.

The Letter of Date and Sesmaria had provisional value, and it was up to the sesmeiro to beg the King for it to be confirmed, within three years. If confirmed, the squatter sesmeiro received the confirmation letter that was equal to an outright. Holder of a provisional basis, the sesmeiro could only transfer the land to a third party under the governor's approval, through a request made to the chief provider who would present it to the governor, because the Letter of Date and Sesmaria forbade trespass. The outright gave full powers to sesmeiro as to what was in regard to land ownership - to have, achieve, and possess as his own, for him and all of his heirs, ancestors and descendants, neither pension, nor any tribute more than a tithe to God Our Lord from the fruits had and labored there (VIANNA, 1904, p. 150, apud BENATTI, 2003, p. 40).

Sesmarial property is the one that was confirmed by the King, the sesmeiro required a land date, met the two main obligations to receive confirmation: the cultivation and demarcation. It acknowledged as an individual right to land property the ones who possessed as original title deeds of grant and confirmation from the Portuguese Crown. The ownership of land was regulated in the sesmarial system by Ordinance and several sparse laws emanating from the portuguese metropolis. After confirmation, the land acquired the status next to what is now given to absolute private property. For purposes of this paper, we also consider that sesmarial land ownership that land wich in Brazil has not been confirmed, but for which there was a request or favorable clearance from the Great Captain or from the Governor - granted sesmarias -, therefore, the applicant who obtained the confirmation on his letter of date and sesmaria. We also point out that under legal analysis, only confirmed sesmarias are the ones that have legal repercussions until the present, or may be considered valid.

The seigniorial property has originated from primary land possession, which means, by possession and not by official transfer of public property to private equity, as occurred in the system sesmarial. It is the local habit and prevailing legal perspective at the time that gave it the status of rural private property. Afterwards the State sought to recognize and legitimize it under pressure of the seigniorial owners. In fact, there was private appropriation of public land, in other words, public property. The legitimacy is based on the work applied to the land and its legalization was given by acquisitive prescription, purchase and sale transactions, and wills, which were conducted in private documents and "formalized" in notaries and testamentary judges. One would say that the design of seigniorial property is closer to the sociological notion, with elements and legal arguments.

The fact that the seigniorial property have its legitimacy in possession, does not make it a property illegal or outlaw, because it is an actual property, which is based on the legal doctrine of the seventeenth and eighteenth centuries, strengthened both political and legally by to the landlord's power. Let's remember also that the seigniorial property is only large property, not including those who had no power at the time, such as quilombolas, river people, indians etc.. The seigniorial property becomes illegal in the early twentieth century with the strengthening of the modern conception of property.

Brazilian modern property is one that is demarcated and registered at register office, a mechanism used by the Government to transfer its assets to private ownership. While the first two have their period of development from the fifteenth century to the nineteenth century, the latter will only emerge in the late nineteenth century, but only becomes hegemonic between 1930 and 1960, depending on the region of Brazil. It should be emphasized that this is not a replacement of a category by another: at the same historical period, they coexisted, without necessarily having conflict amongst them.

One should not confuse sesmarial, seigniorial, and modern property with absolute property or absolutization of property. We call absolute property the one that has the characteristic of absolute, exclusive, and perpetual character over its dominium, ie one in which the owner's power over the thing is absolute and exclusive[1]. Thus, the property owner can use, possess and dispose of it as he wishes, subject only to limitations imposed by law or public interest. By its turn in the feudal property the dominium was shared (not absolute) between two subjects: the lord and vassal. Due to this characterization, it is common to make the analogy between property absolutization and the end of feudalism. However, it is important to draw attention to the fact that in Brazil, rural private property comes absolute and individual, be it sesmarial, seigniorial or modern[2]. Each one has its own unique character, its unique procedure to take land and natural resources ownership, but there are common elements, especially between seigniorial and sesmarial property.

The Sesmarias Collection

Land distribution in Brazil has its peculiarities, having the need, thus, increasingly, of elements that provide subsidies to futher discussion of various issues surrounding the rural property in this country. Therefore the importance of studying the sesmarial system and the publication of this collection, proceeded by the book "Sesmaria", produced and published by the Land Institute and Culture Office of Para in 2009[3]. In this final publication the proposal was to introduce the issue of land distribution in the country from the Sesmarias records, highlighting its importance for the guidance of Territorial Planning in Para County. In this collection, comprising 20 volumes, the proposal is to present to its reader the digital imaging records followed by their verbatim transcripts of their content.

The Register books of Dates and Sesmarias, a total of 2158 (two thousand one hundred and fifty eight) registers, transcripted in this collection, under the custody of the Public Archives of Pará, include documents from the eighteenth and nineteenth centuries. The transcripts obeyed literally the order[4] adopted in the Archive for organizing the original historical documents, therefore, presenting documentation of the previous State of the Grão Pará and Maranhão, reason why the reader will have access to documents relating also to Maranhão and Piauí.

It is important to emphasize that the collection's main purpose is the dissemination and transcription of Sesmarias Letters. The letters of provision and patent were meant for indicating people under El Rei's service, handed out as reward for good deeds performed. The letters of provision and patent were official titles of a privileges granting. They were titles, documents through which the Crown granted a privilege that could be an office, dignity, a license to carry out an occupation. These letters could demand precepts, provisions on the granting. They will be found throughout those volumes, even though as they do not constitute specific subject of the collection they were not transcribed. Although not transcribed, they were scanned with the intention of keeping the original order on the arrangement in each respective book. Likewise, it is necessary to indicate that the measure equivalent to a sesmaria league is equal to 4.356,00 hectares.

The methodological choice for publicizing the contents of the books was to keep exactly the way they were ordered on File and, therefore, was developed over three years the project "Sesmarias"[5], involving historians, history students, researchers. Were used at the various stages of this process techniques of restoration, preservation and paleographic reading of eighteenth-century documentation.

(...) We started doing a technical treatment, ie, to number sheet by sheet which we call security numbers, dry cleaning to remove dust and everything, and we gave necessary baths that made document that was very acidic, turn back to be alkaline and could have greater survival (João Rodrigues Lopes[6]).

Besides the search for the preservation of historical documentation and, therefore, permanent, the project aims to transcribe the Letters of Date and Sesmarias from the eighteenth and nineteenth gathered at the Archives. The proposal was provide to its different readers access to registers that, by its historical characteristics, are reflections of a particular social context, far from the contemporary times and, therefore, difficult to understand nowadays. It is important to point out that the form of writing at that time was kept, performing solely interventions indicated by underlining in order to transcribe the words in full for readability. The reader will see that the same form syllabic separation was maintained as recorded in the original documentation, thus, in compliance to the "technical requirements for transcription of handwritten documents," 1993, which deals with ipsis literis transcript of the original manuscript[7].

(...) ITERPA, decided then to make this partnership with Culture Ministry through the Public Archives to make this whole process of transcribing the sesmarias to a more accessible language, because the language in sesmarias is in an archaic Portuguese, the spelling question, the highly abbreviated writing, so it has the whole reading comprehension process of sesmarias, and this is the process of transcribing the sesmarias, (...). This process causes people when seeing a sesmaria, which will be published there in the book, may understand its contents, facilitating ITERPA's work with Agrarian Regularization issues, all of these agrarian problems, which is the day to day ITERPA (João Rodrigues Lopes).

Even with all restoration and maintenance work performed by the team of historians, are noticeable in the Collection, the action of time and late intervention to safeguard this important chapter in the history of land grant in Brazil. Several excerpts from the letters are difficult to read, which required careful attention to the team so that verbatim transcription of its contents could be performed. However, when reading these documents, you can see the strategic work done by the researchers of Pará's sesmarial register.

(…) the first three volumes, they have a problem we call ink migration, the pen's ink they used were called feather pen and iron gall ink, then what happens, this ink is absorbed by the paper, the paper has a porosity greater than the plain paper today and it absorbed the ink, so, depending on the amount of ink that the writer used to write the document, we'll have a problem of readability or not. So, this call ink migration is a natural process of old documents at the time. The first three volumes are the ones that have a greater problem of ink migration, which has not been a result of chemical treatment, (...) because even when we do a chemical treatment, we need to do a thing called the solubility test, in order to see if you can do it or not. (...) And we did that, but the document had already deteriorated so much that if you look at other volumes, within the collection, you will have at least some documents also experiencing the same problem of readability by ink migration and some might even have their writing oxidized, then, is a natural question what happened (...), there was no loss (...) those are natural results of this action of the ink with the paper type and everything else that happens ( ...) (João Rodrigues Lopes).

Undoubtedly, the importance of the full transcript and of the preservation process proves itself to every page of the collection, but it is worth remembering that this was not an exercise attached to a nostalgic over-refinement. The choice to adopt the literal transcription of the letters contents is a methodological necessity since it is intended, besides the contribution to history and research, protect and democratize the documentary records with their content in a whole. Thus, we believe to be collaborating to the guidance of territorial issues that afflict Pará so much.

The project, embraced by ITERPA and the Culture Office, has its origins in what concerns the intrinsic mission of starting a Public Archives - place of safety, preservation and availability of historical and documentary sources. Thus the project, led by the State of Pará agencies, made possible the implementation of goals for the management of public archives.

Despite all the financial and structural problems, which interfere with projects of this scale in Brazil, the project has achieved important goals such as the one that now materializes with the launch of this collection. We believe that this will be another step towards democratization of agrarian information on our State.

Have a nice reading

José Heder Benatti
President of Iterpa