LETTERS PATENT. It is a rule alike of common law and sound policy that grants of freehold interests, franchises, liberties, &c., by the sovereign to a subject should be made only after due consideration, and in a form readily accessible to the public. These ends are attained in England through the agency of that piece of constitutional machinery known as "letters patent." It is here proposed to consider only the characteristics of letters patent generally. The law relating to letters patent for inventions is dealt with under the heading Patents.
Letters patent (litterae patentes) are letters addressed by the sovereign "to all to whom these presents shall come," reciting the grant of some dignity, office, monopoly, franchise or other privilege to the patentee. They are not sealed up, but are left open (hence the term "patent"), and are recorded in the Patent Rolls in the Record Office, or in the case of very recent grants, in the Chancery Enrolment Office, so that all subjects of the realm may read and be bound by their contents. In this respect they differ from certain other letters of the sovereign directed to particular persons and for particular purposes, which, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close (litterae clausae) and are recorded in the Close Rolls. Letters patent are used to put into commission various powers inherent in the crown - legislative powers, as when the sovereign entrusts to others the duty of opening parliament or assenting to bills; judicial powers, e.g. of gaol delivery; executive powers, as when the duties of Treasurer and Lord High Admiral are assigned to commissioners of the Treasury and Admiralty (Anson, Const. ii. 47). Letters patent are also used to incorporate bodies by charter - in the British colonies, this mode of legislation is frequently applied to joint stock companies (cf. Rev. Stats. Ontario, c. 191, s. 9) - to grant a cone d'elire to a dean and chapter to elect a bishop, or licence to convocation to amend canons; to grant pardon, and to confer certain offices and dignities. Among grants of offices, &c., made by letters patent the following may be enumerated: offices in the Heralds' College; the dignities of a peer, baronet and knight bachelor; the appointments of lord-lieutenant, custos rotulorum of counties, judge of the High Court and Indian and Colonial judgeships, king's counsel, crown livings; the offices of attorneyand solicitor-general, commander-inchief, master of the horse, keeper of the privy seal, postmastergeneral, king's printer; grants of separate courts of quartersessions. The fees payable in respect of the grant of various forms of letters patent are fixed by orders of the lord chancellor, dated 10th of June 1871, 18th of July 1871 and nth of Aug. 1881. (These orders are set out at length in the Statutory Rules and Orders Revised (ed. 1 9 04), vol. ii. tit. " Clerk of the Crown in Chancery," pp. i. et seq.) Formerly each colonial governor was appointed and commissioned by letters patent under the great seal of the United Kingdom. But since 1875, the practice has been to create the office of governor in each colony by letters patent, and then to make each appointment to the office by commission under the Royal Sign Manual and to give to the governor so appointed instructions in a uniform shape under the Royal Sign Manual. The letters patent, commission and instructions, are commonly described as the Governor's Commission (see Jenkyns, British Rule and Jurisdiction beyond the Seas, p. Ioo; the forms now in use are printed in Appx. iv. Also the Statutory Rules and Codes Revised, ed. 1904, under the title of the colony to which they relate). The Colonial Letters Patent Act 1863 provides that letters patent shall not take effect in the colonies or possessions beyond the seas until their publication there by proclamation or otherwise (s. 2), and shall be void unless so published within nine months in the case of colonies east of Bengal or west of Cape Horn, and within six months in any other case. Colonial officers and judges holding offices by patent for life or for a term certain, are removable by a special procedure - "amotion" - by the Governor and Council, subject to a right of appeal to the king in Council (Leave of Absence Act, formerly cited as "Burke's Act" 1782; see Montagu v. Governor of Van Diemen's Land, 1849, 6 Moo. P.C. 491; Willis v. Gipps, 1846, 6 St. Trials [N.S., 311]). The law of conquered or ceded colonies may be altered by the crown by letters patent under the Great Seal as well as by Proclamation or Order in Council (Jephson v. Riera, 18 35, 3 Knapp, 130; 3 St. Trials [N.S.] 591).
Formerly letters patent were always granted under the Great Seal. But now, under the Crown Office Act 1877, and the Orders in Council made under it, many letters patent are sealed with the wafer great seal. Letters patent for inventions are issued under the seal of the Patent Office. The procedure by which letters patent are obtained is as follows: A warrant for the issue of letters patent is drawn up, and is signed by the lord chancellor; this is submitted to the law officers of the crown, who countersign it; finally, the warrant thus signed and countersigned is submitted to His Majesty, who affixes his signature. The warrant is then sent to the Crown Office and is filed, after it has been acted upon by the issue of letters patent under the great or under the wafer seal as the case may be. The letters patent are then delivered into the custody of those in whose favour they are granted.
The construction of letters patent differs from that of other grants in certain particulars: (i.) Letters patent, contrary to the ordinary rule, are construed in a sense favourable to the grantor (viz. the crown) rather than to the grantee; although this rule is said not to apply so strictly where the grant is made for consideration, or where it purports to be made ex certd scientid et mero motu. (ii.) When it appears from the face of the grant that the sovereign has been mistaken or deceived, either in matter of fact or in matter of law, as, e.g. by false suggestion on the part of the patentee, or by misrecital of former grants, or if the grant is contrary to law or uncertain, the letters patent are absolutely void, and may still, it would seem, be cancelled (except as regards letters patent for inventions, which are revoked by a special procedure, regulated by § 26 of the Patents Act 1883), by the procedure known as scire facias, an action brought against the patentee in the name of the crown with the fiat of the attorney-general.
As to letters patent generally, see Bacon's Abridgment (" Prerogative," F.) Chitty's Prerogative; Hindmarsh on Patents (1846); Anson, Law and Custom of the Const. ii. (3rd ed., Oxford and London, 1907-1908). (A. W. R.)
- Please bookmark this page (add it to your favorites)
- If you wish to link to this page, you can do so by referring to the URL address below.
This page was last modified 29-SEP-18
Copyright © 2021 ITA all rights reserved.