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 ; see also MONOPOLY.
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 privi lege 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; execu tive powers, as when the duties of treasurer and lord high admiral are assigned to commissioners of the Treasury and Admiralty (Anson, Const. ii. 21 I). Letters patent are also used to incorporate bodies by charter, to grant a conge d'elire to a dean and chapter to elect a bishop, or licence to convocation to amend canons, and to confer certain offices and dignities. No exemption from income tax, etc., can be effectively granted by letters patent to any city, borough or town (Income Tax Act, 1918, s. 213). Among grants of offices, etc., 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 custos rotulorum of counties, judge of the high court or lord justice of appeal (Supreme Court of Judicature Consolidation Act, 1925, s. 1), king's counsel, Crown livings; the offices of attorney and solicitor-general. The fees payable in respect of the grant of vari ous forms of letters patent are fixed by orders of the lord chan cellor, dated June 20, 1871, July 18, 1871, and Aug. 11, 1881. (These orders are set out at length in the Statutory Rules and Orders Revised [ed. 1904], 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 or governor-general in each colony or dominion by letters patent, and then to make each ap pointment 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 Gov ernor's commission (see Jenkyns, British Rule and Jurisdiction be yond the Seas, p. 100; the forms now in use are printed in App. iv. ; also the Statutory Rules and Codes Revised, ed. 1904, and subsequent years, under the title of the colony to which they re late). The following modern instances may be given: letters patent of Sept. I 1, 1913 (Mauritius) ; Dec. 6, 1922 (Irish Free State) ; Jan. 28, 1924 (Sierra Leone) ; April 9, 1924 (Windward Islands) ; June 6, 1924 (Trinidad and Tobago) ; Aug. 18, (Straits Settlements). 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 proc lamation 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 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 con sideration, or where it purports to be made ex certa scientia et mero mote. (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 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 ss. 24-27 of the Patents Act, 1907), 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.
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, (A. W. R.)