Letters patent

Letters patent issued byQueen Victoriain 1900 creating the office ofGovernor-General of Australiaas part of the process ofFederation

Letters patent transferring a predecessor of theUniversity of LorrainetoNancyin 1768

Letters patent(plural form for singular and plural) are a type oflegal instrumentin the form of a published written order issued by amonarch,presidentor other head of state, generally granting an office, right,monopoly,title or status to a person orcorporation.Letters patent can be used for the creation ofcorporations,government offices, to grant city status orcoats of arms.Letters patent are issued for the appointment of representatives ofthe Crown,such asgovernorsandgovernors-generalofCommonwealth realms,as well as appointing aRoyal Commission.In theUnited Kingdom,they are also issued for the creation ofpeers of the realm.

A particular form of letters patent has evolved into the modernintellectual propertypatent (referred to as a utilitypatentordesign patentinUnited States patent law) granting exclusive rights in aninventionor design. In this case, it is essential that the written grant should be in the form of a public document so other inventors can consult it both to avoid infringement (while the patent remains in force) and to understand how to put it into practical use (once the patent rights expire). In theHoly Roman Empire,Austrian Empire,andAustria-Hungary,imperial patent was also the highest form of generally binding legal regulations, e.g.Patent of Toleration,Serfdom Patent,etc.

The opposite of letters patent areletters close(Latin:litterae clausae), which are personal in nature and sealed so that only the recipient can read their contents. Letters patent are thus comparable to other kinds ofopen letterin that their audience is wide. It is not clear how the contents of letters patent became widely published before collection by the addressee, for example whether they were left after sealing by the king for inspection during a certain period by courtiers in a royal palace, who would disseminate the contents back to the gentry in the shires through normal conversation and social intercourse. Today, for example, it is a convention for the British prime minister to announce that they have left a document they wish to enter the public domain "in thelibraryof theHouse of Commons",where it may be freely perused by all members ofparliament.

Meaning

Letters patent are so named from the Latin verbpatī,patior,to lie open, exposed, accessible.The originator'ssealwas attachedpendentfrom the document, so that it did not have to be broken in order for the document to be read.

They are called "letters" (plural) from their Latin namelitterae patentes,used by medieval and later scribes when the documents were written in Latin. This loanword preserves the collective plural "letters" (litterae) that the Latin language uses to denote a message as opposed to a single alphabet letter (littera).

Usage

Letters patent are a form of open or publicproclamationand a vestigial exercise of extra-parliamentary power by a monarch or president.

They can thus be contrasted with theAct of Parliament,which is in effect a written order by Parliament involvingassentby the monarch in conjunction with its members. No explicit government approval is contained within letters patent, only the seal or signature of the monarch.

Parliament today tolerates only a very narrow exercise of the royal prerogative by issuance of letters patent, and such documents are issued with prior informal government approval, or indeed are now generated by government itself with the monarch's seal affixed as a mere formality. In their original form they were simply written instructions or orders from the sovereign, whose order was law, which were made public to reinforce their effect.

For the sake of good governance, it is of little use if the sovereign appoints a person to a position of authority but does not at the same time inform those over whom such authority is to be exercised of the validity of the appointment.

According to the United KingdomMinistry of Justice,there are 92 different types of letters patent.ThePatent Rollsare made up of office copies of English (and later United Kingdom) royal letters patent, which run in an almost unbroken series from 1201 to the present day, with most of those to 1625 having been published.

United Kingdom and Commonwealth realms

Main article:Letters patent (United Kingdom)

In theUnited Kingdomand otherCommonwealth realms,letters patent are royal proclamations granting an office, right, title, or status to a person (and sometimes in regard to corporations and cities). Letters patent take the form of anopen letterfrom themonarchto a subject, although this is alegal fictionand they are in fact aroyal decreemade under theroyal prerogativeand are treated asstatutelaw.Letters patent do not require the consent ofparliament.

In some Commonwealth realms, such asCanadaandNew Zealand(Letters Patent, 1947in Canada andLetters Patent 1983in New Zealand), letters patent serve as formal legal instruments that officially grant powers to thegovernor general.

An important function ofLetters Patentin manyCommonwealth Realmsis to act as the order from theMonarchauthorising the establishment and powers of aRoyal Commissionor a Special Commission of Inquiry. This can be seen in jurisdictions such asAustraliawhere Letters Patent are frequently issued in relation to new and ongoingRoyal Commissions.

United States

Letters patent issued by the United StatesUnited States General Land Office

The primary source of letters patent in theUnited Statesareintellectual propertypatentsandland patents,though letters patent are issued for a variety of other purposes. They function dually as public records and personal certificates.

In the United States, theforgeryof letters patent granted by thePresidentis acrimesubject to fine,imprisonmentup to ten years or both (18 U.S.C.§ 497). Without letters patent, a person is unable to assume an appointed office. Such an issue prompted theMarbury v. Madisonsuit, whereWilliam Marburyand three others petitioned theUnited States Supreme Courtto orderJames Madisonto deliver their letters for appointments made under the previous administration.

Form of United States letters patent

United States letters patent generally do not fit a specific form, except for theeschatocol,or formal ending:

IN TESTIMONY WHEREOF, the undersigned [public official], in accordance with [relevant law], has in the name of the United States, Caused these letters to be made Patent and the Seal of [relevant agency or government official] to be hereunto affixed. GIVEN under my hand, in [city] the [date] in the year of our Lord [year] and of the Independence of the United States the [years since July 4, 1776]. By [signature of public official issuing letter]

See also

• Commissioning scroll
• Exequatur
• Firman
• Letter of marque
• Lettre de cachet
• Papal bull,a type of letters patent issued by a Pope
• Royal Charter
• Statute of Monopolies 1623,an attempt to rein in the abuse of letters patent in England

External links

• Royal grants in letters patent and charters from 1199,research guide at the National Archives (UK)