Sunday, 17 October 2021

The Lord High Treasurer of the United Kingdom

 

Conventional wisdom, Wikipedia, and just about every reference book, would have you believe that the Great Office of State known as the Lord High Treasurer of the United Kingdom [1] is in commission, and that Boris is First Lord Commissioner thereof.

Conventional wisdom, Wikipedia, and far too many reference books are wrong. The office of Lord High Treasurer of the United Kingdom is, and always has been since its creation, vacant.

But first, some history.

The Lord High Treasurer of England

The first and third (probably in both cases) Lord High Treasurer of England was Nigel [2], the then Lord Bishop of Ely, between both 1126-1133 and 1154-1158. He seems to have also been some sort of tresorial equivalent in Normandy too. Whether or not this office was that of Lord High Treasurer, or simply Treasurer, remains unclear - a lack of clarity which may indeed descend to the present day.

Over time this office amassed considerable power, with a subordinate, the Under-Treasurer and Chancellor of the Exchequer [3], and ranking as a Great Office of State behind the Lord High Chancellor [4]. Initially they formed a vaguely co-equal part of what became the Court of the Exchequer: after all, if you owed money to the King, and couldn't pay because someone else owed you money then perhaps it was worth the King settling that dispute?

In time the Court of Exchequer, headed by the Chief Baron [5] and staffed by the Barons thereof, became a fully-fledged court in Westminster Hall, and the Lord High Treasurer and the Chancellor [6] ran the money side of things. Those interested in this should look into the wonderfully bizarre world of the Pipe Office, you will not be disappointed.

However, as noted in Anson [7] the Lord High Treasurership was actually always conferred as a pair of offices: the Lord High one by granting a wand of office [8] and the office of Treasurer of the Exchequer by Letters Patent. And it is to that pairing that we shall return.

Letters Patent in the Modern Day


These were the Letters Patent that formally, inter alia, appointed Boris Johnson as First Lord. But there is a key sentence which kicked this whole journey off and let to my discovery.

Mid-way down, one will notice that the Patent says 
from time to time during the vacancy of the Office of Lord High Treasurer of the United Kingdom

and a bit later references 

Commissioners of Our Treasury of the United Kingdom

Alone, these two phrases would say nothing. But we contrast these with those from the Letters Patent appointing Lords Commissioners of the Admiralty [9] which say

Commissioners for executing the Office of Lord High Admiral [my emphasis]

Already we have an hint of a difference.

Treatment in Statutes

Before we dive into the legislation, and find that there indeed is a difference, a quick look at a few statutes buttresses this idea of a difference. Firstly, the Encouragement of Fisheries Act 1775 [10] at section 19 has

 impowered by the lord high admiral or any other person whatsoever

at a time when the office of Lord High Admiral was undoubtedly in commission, but at section 35 has

high treasurer of Great Britain, or the commissioners of the treasury for the time being.

A similar formulation is found in the Stamp Act 1765 [11]. Keeping the theme going the Act 20 Vict. cap. 1 has (for the Lord High Admiral)

Commissioners for executing the Office of Lord High Admiral

and so does the Act 13 Geo. II. cap. 17.

So great care was being taken both before an after the Union with Ireland to refer to the Commissioners for the Treasury and the Commissioners for executing the Office of  Lord High Admiral in different ways.

Mergers and Answers

The treasuries of England and Scotland had been merged at their union to form the Lord High Treasurer of Great Britain, an office which was held by people, and always concurrently with that of Treasurer. But, as noted in Sainty [12] whenever the office was held in commission the former office was left vacant and the latter office was put into a commission. Anson [vide infra] dodged the question of what would happen if different individuals were appointed as Lord High Treasurer and Treasurer and therefore so will I.

At the Union with Ireland, the two treasuries remained separate until 1816, when Parliament provided (by a provision still in force) for their merger, viz. [13]

The offices of lord high treasurer of Great Britain and lord high treasurer of Ireland shall be united into one office, and the person holding the same shall be called lord high treasurer of the United Kingdom of Great Britain and Ireland; and whenever there shall not be any such lord high treasurer, it shall and may be lawful for his Majesty by letters patent under the great seal of Great Britain to appoint commissioners for executing the offices of treasurer of the Exchequer of Great Britain and lord high treasurer of Ireland; and such commissioners shall be called commissioners of his Majesty’s Treasury of the United Kingdom of Great Britain and Ireland [much irrelevant text omitted]

Which provides a fully contained answer to the whole conundrum: Her Majesty has two options, put the office of Lord High Treasurer into the hands of a single person or put the offices of both Treasurer (and Lord High Treasurer of Ireland) into commission. 

Since the office has been in commission ever since 1816, therefore there has never been a Lord High Treasurer of the United Kingdom. More importantly, the office is not and never has been in commission: it is, and always has been, vacant.

Which, as it happens, the Letters Patent themselves recall.

Conclusion

Wikipedia, and many other sources are wrong. There is no commission to exercise the office of Lord High Treasurer, it is simply vacant. There is a body, the Lords Commissioners of Her Majesty's Treasury, but they are exercising the office of Treasurer of the Exchequer (and possibly, oddly, Lord High Treasurer of Ireland).

Colophon

I am grateful to Rich Greenhill and Bluemantle Pursuivant-of-Arms, without who's accidental questions I would never have discovered this, and to Simon Harley for some Admiralty patents to confirm some things.
 
[1] For clarity, any reference hereafter to the Lord High Treasurer unqualified means this one, not, as we shall see, the other ones.
[2] Just Nigel, really!
[3] Familiar title, that...
[4] Which office, despite all attempts otherwise, continues to exist and is very much not vacant
[5] This is probably the cause of the bizarre rule that when the office of Chancellor of the Exchequer is vacant the Lord Chief Justice serves ad interim. The last to do so was the Lord Denman in November and December 1834. This ensured that the nominally senior Chancellorship was still occupied by someone senior to the Chief Baron.
[6] Chancellor without qualification means Chancellor of the Exchequer; Treasurer without qualification will mean Treasurer of the Exchequer.
[7] Laws and Customs of the Constitution, part II, the Crown, Sir William Anson, Bt., D.C.L. p. 162 (thanks to Greenhill for informing me of this)
[8] Not dissimilar, I think, to the Lord High Steward, et al.
[9] Simon Harley, private communication.
[10] 15 Geo. III. cap. 31
[11] 5 Geo. III. cap 12
[12] Office-Holders in Modern Britain: Volume 1, Treasury Officials 1660-1870

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