Sesmarias

In this archipelago the sesmaria laws preceded the colonia contract (Madeiran sharecropping tenancy; produce divided, improvements owned by the tenant) (volume I, page 290); or perhaps it would be more accurate and apt to say that the sesmaria (royal land grant to settlers on condition of cultivation), evolving and adapting itself to local conditions, turned into the colonia contract. The account that Gama Barros gives in his monumental Historia da Administração Publica em Portugal of the sesmaria laws created in the reign of King Fernando shows that these laws were chiefly intended to make productive the lands that their owners kept abandoned, although the owners did not lose their right of ownership. In Madeira, it is known that the donataries, as the letters of grant from Prince Henry the Navigator allowed them, granted land in sesmaria, a practice carried out on a large scale throughout the island, in addition to the grants made directly by the monarchs. It is not known, however, whether the lands were granted free of any rent, pension or quit-rent (foro), and therefore with the sesmeiro (holder of a land grant, or sesmaria) holding absolute dominion over the land, or whether the land was subject to the payment of some contributions in favour of the Crown, the donataries or the Order of Christ. If such a levy ever existed, we have no knowledge of it today, and it could only have occurred in the earliest days of colonisation. From the time of the first entails (instituições vinculares), which date from the end of the 15th century, the sesmeiro was regarded as the absolute lord of his landholdings, disposing of them freely in creating countless entailed estates and in selling the lands and granting them on emphyteutic lease (aforamento, perpetual lease for an annual quit-rent).

Gaspar Frutuoso says ‘that when João Gonçalves arrived in Funchal, he began to lay out the town and to give out land in sesmaria, as he was instructed by the regulations (regimento) of Prince Henry . . ., and, in accordance with the said regulations, he gave for five years the lands that were not tilled, within which time the grantees were bound to make use of them and till them, on pain of having them taken away, should they fail to do so within this period, and given to whoever would make use of them’. No mention is made here of any charge weighing on the lands granted in sesmaria. Beyond what has been said, all that is known is that if the lands, after being brought into use, were abandoned by their cultivators, they could pass into the possession of third parties, when that abandonment lasted for more than five years.

As has already been said elsewhere, it was to Portuguese and foreign nobles, and to some prominent foreign merchants, that the donataries granted the land, and they found in the African slave their chief helper in clearing the ground. Many of these grantees (sesmeiros) grew rich and turned their lands into entailed estates. Contracting out the cultivation of those lands to free tenants in return for the half-share (dimídia, half of the harvest owed to the landlord), they gradually left the tilling and cultivation of the properties to them, and went off to enjoy the income of their fields and estates in the city or at court. Little by little the tenants freed themselves from the landowners’ tutelage. They farmed the sesmaria lands on their own account and burdened them with houses, walls and other improvements (benfeitorias, buildings and walls made by the tenant, which remained his property), to which ownership of the trees and plants themselves was later added. In this way they created a special situation that gave them almost the standing of co-owners of the land they tilled, while the former grantees, the true owners of the land, came to depend on them to a large extent. Here lies the true origin of the colonia contract (Madeiran sharecropping tenancy; produce divided, improvements owned by the tenant), which, as we said above, is simply a transformation of the old sesmarias. See Colonia, Old customs and Entails.