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, 1835, 3 Knapp, 130; 3 St. Trials [N.S.] 591).
Procedure.—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.
Construction.—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 certâ scientiâ 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.)
LETTRES DE CACHET. Considered solely as French documents,
lettres de cachet may be defined as letters signed by
the king of France, countersigned by one of his ministers, and closed
with the royal seal (cachet). They contained an order—in
principle, any order whatsoever—emanating directly from the
king, and executory by himself. In the case of organized bodies
lettres de cachet were issued for the purpose of enjoining members
to assemble or to accomplish some definite act; the provincial
estates were convoked in this manner, and it was by a lettre de
cachet (called lettre de jussion) that the king ordered a parlement
to register a law in the teeth of its own remonstrances. The
best-known lettres de cachet, however, were those which may be
called penal, by which the king sentenced a subject without trial
and without an opportunity of defence to imprisonment in a
state prison or an ordinary gaol, confinement in a convent or a
hospital, transportation to the colonies, or relegation to a given
place within the realm.
The power which the king exercised on these various occasions was a royal privilege recognized by old French law, and can be traced to a maxim which furnished a text of the Digest of Justinian: “Rex solutus est a legibus.” This signified particularly that when the king intervened directly in the administration proper, or in the administration of justice, by a special act of his will, he could decide without heeding the laws, and even in a sense contrary to the laws. This was an early conception, and in early times the order in question was simply verbal; thus some letters patent of Henry III. of France in 1576 (Isambert, Anciennes lois françaises, xiv. 278) state that François de Montmorency was “prisoner in our castle of the Bastille in Paris by verbal command” of the late king Charles IX. But in the 14th century the principle was introduced that the order should be written, and hence arose the lettre de cachet. The lettre de cachet belonged to the class of lettres closes, as opposed to lettres patentes, which contained the expression of the legal and permanent will of the king, and had to be furnished with the seal of state affixed by the chancellor. The lettres de cachet, on the contrary, were signed simply by a secretary of state (formerly known as secrétaire des commandements) for the king; they bore merely the imprint of the king’s privy seal, from which circumstance they were often called, in the 14th and 15th centuries, lettres de petit signet or lettres de petit cachet, and were entirely exempt from the control of the chancellor.
While serving the government as a silent weapon against political adversaries or dangerous writers and as a means of punishing culprits of high birth without the scandal of a suit at law, the lettres de cachet had many other uses. They were employed by the police in dealing with prostitutes, and on their authority lunatics were shut up in hospitals and sometimes in prisons. They were also often used by heads of families as a means of correction, e.g. for protecting the family honour from the disorderly or criminal conduct of sons; wives, too, took advantage of them to curb the profligacy of husbands and vice versa. They were issued by the intermediary on the advice of the intendants in the provinces and of the lieutenant of police in Paris. In reality, the secretary of state issued them in a completely arbitrary fashion, and in most cases the king was unaware of their issue. In the 18th century it is certain that the letters were often issued blank, i.e. without containing the name of the person against whom they were directed; the recipient, or mandatary, filled in the name in order to make the letter effective.
Protests against the lettres de cachet were made continually by the parlement of Paris and by the provincial parlements, and often also by the States-General. In 1648 the sovereign courts of Paris procured their momentary suppression in a kind of charter of liberties which they imposed upon the crown, but which was ephemeral. It was not until the reign of Louis XVI. that a reaction against this abuse became clearly perceptible. At the beginning of that reign Malesherbes during his short ministry endeavoured to infuse some measure of justice into the system, and in March 1784 the baron de Breteuil, a minister of the king’s household, addressed a circular to the intendants and the lieutenant of police with a view to preventing the crying abuses connected with the issue of lettres de cachet. In Paris, in 1779, the Cour des Aides demanded their suppression, and in March 1788 the parlement of Paris made some exceedingly energetic remonstrances, which are important for the light they throw upon old French public law. The crown, however, did not decide to lay aside this weapon, and in a declaration to the States-General in the royal session of the 23rd of June 1789 (art. 15) it did not renounce it absolutely. Lettres de cachet were abolished by the Constituent Assembly, but Napoleon re-established their equivalent by a political measure in the decree of the 9th of March 1801 on the state prisons. This was one of the acts brought up against him by the sénatus-consulte of the 3rd of April 1814, which pronounced his fall “considering that he has violated the constitutional laws by the decrees on the state prisons.”
See Honoré Mirabeau, Les Lettres de cachet et des prisons d’état (Hamburg, 1782), written in the dungeon at Vincennes into which his father had thrown him by a lettre de cachet, one of the ablest and most eloquent of his works, which had an immense circulation and was translated into English with a dedication to the duke of Norfolk in 1788; Frantz Funck-Brentano, Les Lettres de cachet à Paris (Paris, 1904); and André Chassaigne, Les Lettres de cachet sous l’ancien régime (Paris, 1903). (J. P. E.)
