Walker Trustees v Lord Advocate
| Jurisdiction | England & Wales |
| Judgment Date | 01 December 1911 |
| Date | 01 December 1911 |
| Docket Number | No. 4. |
| Court | House of Lords |
Earl of Halsbury, Ld. Atkinson, Lord Kinnear, Lord Gorell.
Heritable OfficePrincipal Usher in ScotlandEmolumentsFees from Peers of the United KingdomTreaty of Union, 1706, Art. 20Act of Union, 1707 (6 Anne, cap. xi.)StatuteUsage.
The Treaty of Union, 1706, ratified by the Act of Union, 1707, provided :XX. That all heritable offices, superiorities, heritable jurisdictions, offices for life, and jurisdictions for life be reserved to the owners thereof as rights of property in the same manner as they are now enjoyed by the laws of Scotland notwithstanding of this Treaty.
At the time of the Union the holder of the office of principal Usher within the kingdom of Scotland was, under a royal charter dated 21st January 1686, ratified by Act dated 15th June 1686, entitled to fees from all Scotsmen receiving honours from the King as sovereign of Scotland, and from Englishmen in Scotland who received such honours.
In an action of declarator brought in 1908 by the holders of the office, held(rev. judgment of the Second Division) that, inasmuch as Article XX. of the Act of Union did not enlarge the rights of the office but merely reserved these rights unchanged, its holders were not entitled to fees from recipients of honours whose titles were not purely Scottish titles but were titles of the United Kingdom of Great Britain and Ireland; and that, as Article XX. was unambiguous in its terms, no consideration could be given to the fact that from 1766 to 1904 the holders of the office had claimed and received such fees.
(In the Court of Session 7th July 19101910 S. C. 1037.)
The Lord Advocate and others, defenders, appealed to the House of Lords.
The case was heard on 10th and 11th July 1911.
At delivering judgment on 1st December 1911,
Earl of Halsbury.I have had the opportunity of reading my noble and learned friend Lord Atkinson's judgment. I agree with it, and I do not think I can usefully add anything to his reasons.
Lord Atkinson.This is an appeal against a judgment of the Second Division of the Court of Session whereby it was declared that the respondents, a body of trustees incorporated by a private Act styled the Walker Trust Act, 1877, and admittedly the proprietors and holders of the heritable office of His Majesty's sole and principal Usher within the Kingdom of Scotland, are, as such, entitled to recover certain fees and dues, claimed to appertain to this office, from the recipients from the Crown of the following honours, titles, and dignities of the United Kingdom, namely, upon the creation of a Duke, 21, 13s. 4d.; of a Marquis, 18, 6s. 8d.; of an Earl, 15; of a Viscount, 10; of a Baron, 6, 13s. 4d.; of a Knight-Baronet, 5; and of a Knight, 3, 6s. 8d.
The action out of which the appeal has arisen was instituted by the Walker Trustees to try their right to recover these fees on the conferring by the Crown of honours, titles, and dignities of this character. The defenders, other than the Lord Advocate, who represents the Crown and the Lords Commissioners of His Majesty's Treasury, are all persons resident in Scotland whose titles are titles of the United Kingdom of Great Britain and Ireland. Two of them, namely, Sir Charles Cayzer, Bart., and Sir Arthur Bignold, are Englishmen, and three, namely, Lord Leith of Fyvie, Sir John Wilson, Bart., and Sir Henry Cook, are Scotsmen. The last-named appellant and Sir Arthur Bignold were created knights by accolade at Buckingham Palace in the year 1904. The titles and honours of all the others were conferred about the same date by patents under the Great Seal of the United Kingdom. The right of the respondents to recover these fees is the sole question for decision.
This office of Usher or White Rod, as he is styled, is a very ancient one. It existed for centuries before the Union of the Crowns of England and Scotland on the accession of James VI. of Scotland to the English Throne as James I. of England in the year 1603. It admittedly was, and has never ceased to be, a Scottish office. Its duties, such as they were, were performed in Scotland, and did not, and could not, before the year 1707, affect or concern the holders of English or Irish peerages, dignities, or honours as such, who were not members of either of the Houses of the Scottish Parliament, did not attend either general councils or feasts at the Scottish Court, and were not resident in that kingdom.
The earliest document referred to in evidence dealing with the office is a grant of 1393, confirmed by a statute of the Parliament of Scotland, of the Barony of Langton to Alexander Cockburn of Langton, in consideration of certain services to be...
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