57
Is the Agreement contra bonos mores?
[100] The pursuer did not dispute the defender's characterisation of the firm's trade as facilitating a secondary market in the sale of titles. In effect, this appears to enable persons who have no connection with Scotland and who are not domiciled here, nonetheless to obtain a grant of arms so long as they can show that they have acquired a barony title. It is far from clear that this is the purpose for which the royal prerogative is properly to be exercised by the Lord Lyon.
[101] While I was not referred to this part of Scots Heraldry, I note Sir Thomas Innes' description of the relatively high proportion of Scots who held titles and honours at the time of the Union in 1707 (eg he noted that there was one peer per 8000 persons, whereas in England the figure was one peer for every 32,000 persons). Also notable was the learned author's description of the width of distribution of arms and honours to many strata of society:
"In Scotland, not only peers and lairds, but professors, lawyers, merchants, and business men, have continually registered arms as a matter of course, by descent if proved, otherwise under new grants." (Scots Heraldry, cit supra, at p 85).
Lyon Innes' enthusiasm to revivify the grant of arms in Scotland, which is evident in the early chapters of Scots Heraldry, is remarked upon by Lyon Sellar: see Sterzenegger at paragraph 16. That enthusiasm notwithstanding the expansiveness with which Lyon Innes viewed jurisdiction in respect of barony titles, and which might be seen as at least not averse to the activities engaged in by the firm, it must be noted that Lyon Innes' discussion elsewhere in that volume (see, eg from page 85ff) appears to assume that the applicant has a Scottish domicile (presumably, technically, because one of the incidents of ownership of a barony title is the right to bear coats of arms in Scotland and a record
