Letters Patent

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A letters patent is a type of legal instrument, a formal, published, and frankly quite theatrical written order. It’s issued by a figurehead—a monarch, a president, or some other head of state who feels the need to make a point in public. The purpose is generally to grant something tangible or intangible: an office, a right, a monopoly on some tedious trade, a title, or a specific status to a person or, if they're feeling particularly generous, an entire corporation.

Think of it as the state's way of pointing at someone and saying, "This one's important now." Letters patent are the mechanism for creating corporations out of thin air, establishing government offices, elevating a town to the status of a city, or bestowing a coat of arms so a family can have a fancy drawing of a lion on their stationery. They are also the documents used to appoint representatives of the Crown, such as the governors and governors-general dispatched to oversee the various Commonwealth realms. In the United Kingdom, they're still used to create new peers of the realm, which is a quaint way of saying they anoint new members of the aristocracy.

A peculiar and far more practical mutation of this medieval instrument has evolved into the modern intellectual property patent—what the United States patent law calls a utility patent or a design patent. This version grants an inventor exclusive rights to their invention or design. Unlike its ancestor, which was about publicizing a grant of royal favor, the modern patent’s publicity is its entire point. The written grant must be a public document so that other inventors can study it, partly to avoid the inconvenience of a lawsuit for infringement while the patent is active, and partly so they can finally use and improve upon the idea once the rights expire and it enters the public domain.

Historically, in places like the [Holy Roman Empire](/Holy_Roman Empire), the Austrian Empire, and Austria-Hungary, an imperial patent was the highest form of legally binding regulation, a decree with the full force of law. Examples like the Patent of Toleration or the Serfdom Patent were not mere grants; they were fundamental shifts in social policy, handed down from on high.

The conceptual opposite of letters patent are letters close (Latin: litterae clausae). These were personal, private, and sealed shut so that only the intended recipient could read the contents. Letters patent, therefore, are the ancestor of the open letter, a message deliberately intended for a wide, public audience. One does wonder how, precisely, these contents became "widely published" before the recipient even collected them. Perhaps they were left lying around the royal court, a calculated bit of political gossip for courtiers to disseminate back to the provinces through the usual channels of social intercourse. Today, the process is less romantic. A British prime minister might announce they have left a document they wish to make public "in the library of the House of Commons," where it can be perused by any member of parliament with time to kill.

Meaning

The name "letters patent" derives from the Latin verb patī, which means 'to lie open, exposed, accessible'. It’s a literal description. The document was designed to be read by anyone. The originator's seal was not used to close the document but was attached pendent from the bottom, hanging from a ribbon or cord of parchment. This way, the document could be unfolded and read without breaking the very symbol of its authenticity. A simple, practical design for a public declaration.

The term is "letters," plural, a direct translation of its Latin name, litterae patentes. In classical and medieval Latin, the plural litterae was used to refer to a message or a document, while the singular littera meant a single letter of the alphabet. This linguistic fossil, a plural form for singular and plural, survives in the English term, a small, pedantic reminder of its origins.

Usage

At their core, letters patent are a form of open proclamation and a vestigial exercise of power by a monarch or president that operates outside the usual legislative channels. [citation needed] They are a relic from a time when one person's will could be law.

This places them in stark contrast to an Act of Parliament, which is essentially a written order from the entire legislature, requiring the assent of the monarch in conjunction with its elected or appointed members. Letters patent, at least in their pure form, contain no explicit government approval, only the seal or signature of the monarch. [citation needed]

Of course, in the modern era, this is largely a constitutional fiction. Parliament now tolerates only a very narrow and carefully circumscribed exercise of the royal prerogative through letters patent. These documents are typically issued with prior, informal government approval, or are, in reality, generated by the government itself, with the monarch's seal affixed as a mere formality—a constitutional rubber stamp. Originally, they were nothing more than written instructions from a sovereign whose word was law, made public to ensure the orders were known and, more importantly, obeyed. [citation needed]

For the sake of basic governance, it is of little use if a sovereign appoints someone to a position of authority but fails to inform those who are now subject to that authority. The public nature of letters patent solved this fundamental problem of communication. [citation needed]

According to the United Kingdom's Ministry of Justice, a body that presumably has better things to do, there are 92 different types of letters patent still in use. The Patent Rolls comprise the official office copies of English (and later, United Kingdom) royal letters patent. This collection forms a nearly unbroken series stretching from 1201 to the present day, a monumental archive of royal will and administrative habit, with most of the documents up to 1625 having been published for the morbidly curious. [citation needed]

United Kingdom and Commonwealth realms

In the United Kingdom and the other Commonwealth realms, letters patent remain a form of royal proclamation used to grant an office, right, title, or status. They are structured as an open letter from the monarch to a subject. This is, of course, a legal fiction; in practice, they are a royal decree issued under the royal prerogative and are treated with the weight of statute law. Crucially, letters patent do not require the consent of parliament, making them a useful tool for actions that fall squarely within the Crown's remaining powers.

Specific uses in Commonwealth realms outside the United Kingdom include:

The creation of vice-regal offices. The modern constitutional frameworks of countries like Canada and New Zealand were shaped by these documents. The Letters Patent of 1947 in Canada and the Letters Patent of 1983 in New Zealand are foundational instruments that delegate the monarch's executive authority to their respective governors-general.
The establishment of Royal Commissions or other special commissions of inquiry, a common practice in nations like Australia to investigate matters of significant public concern.

United States

In the United States, the term "letters patent" most commonly refers to two things: intellectual property patents and land patents issued by bodies like the former United States General Land Office. However, they are also issued for a variety of other purposes, functioning dually as public records and as personal certificates of a right or office. [citation needed]

The United States, having shed the monarchy, reappropriated the form for its own republican needs. The forgery of letters patent granted by the President is considered a serious crime, punishable by fines, imprisonment for up to ten years, or both, as codified in 18 U.S.C. § 497. This underscores their importance: without valid letters patent, a person cannot legally assume an appointed office.

This very issue was the catalyst for the landmark legal case of Marbury v. Madison. In the final hours of his presidency, John Adams appointed several justices of the peace, including William Marbury. Their commissions were signed and sealed, but the letters patent were not delivered before the new administration took over. The new Secretary of State, James Madison, refused to deliver them. Marbury and three others petitioned the United States Supreme Court to force Madison to hand over the documents. The resulting decision established the principle of judicial review, all because of a fight over the delivery of some paperwork. [citation needed]

Form of United States letters patent

The formal ending, or eschatocol, of a United States letters patent follows a rigid and solemn formula, a linguistic performance of bureaucratic authority. It typically reads as follows:

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]

[citation needed]