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by Martin Grieve
Last modified: 2010-12-29 by rob raeside
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by Martin Grieve
Extracts from the National Archives commonly make reference the use of flags in the UK. Below are selections found by perusing the Archives from the 19th Century.
The Acts of Union passed by the Parliaments of Great Britain and Ireland, in July and August 1800 respectively, made no reference to the flags of the United Kingdom except to say that they "shall be such as His Majesty shall be pleased to appoint." This was achieved by two Royal Proclamations of 1 January 1801. The First, among other things, described the Royal Standard and Union Flag, while the Second detailed "the Ensigns, Flags, Jacks, and Pendants worn by Our Ships".
"We have, therefore, thought fit, by and with the Advice of Our Privy Council, to order and appoint the Ensign described on the Side or Margin hereof to be worn on board all Ships or Vessels belonging to any of Our Subjects whatsoever, and to issue this Our Royal Proclamation to notify the same to all Our Loving Subjects, hereby strictly charging and commanding the Masters of all Merchant Ships and Vessels belonging to any of our Subjects, whether employed in Our Service or otherwise, and all other Persons whom it may concern, to wear the said Ensign an board their Ships or Vessels: ......... which shall be worn instead of the Ensign before this Time usually worn in Merchant Ships;"The 'ensign described in the margin', as drawn on a poster of the proclamation, [National Archives PRO 61/73] is small, black and white, and not very clear. The proclamation ends with the procedure to be followed if ships failed to wear the Red Ensign, or wore prohibited flags, but no punishment or penalty for infringement of the rules is specified.
In 1819 the master of a ship in home waters who had persisted in flying a
blue ensign and pendant although repeatedly fired at, was prosecuted by the
Admiralty, but upon his appeal the prosecution was dropped with the hope that
'it will be understood that any future violation of the law will be punished
strictly.' Two other ships were, in the following year, prosecuted for flying
pendants, and in 1821 the attention of the Commanders-in-Chief was called to
the existing regulations 'relative to Colours to be worn by private ships which
it has been apprehended have not been generally attended to.' " [W.G.Perrin,
'British Flags' p.133]
It was difficult to enforce the terms of the
proclamation due to the lack of any specified penalty. An attempt to rectify
this was made in 1822. Section 24 of a 1784 Act for the Prevention of
Smuggling, 24 Geo.III, c.47, (47th chapter, or act, passed in the 24th year of
the reign of King George III), stated that any person having charge of a
vessel, not in the service of His Majesty's Navy, Revenue, Customs or Excise,
that hoisted the pendant or ensign of the Revenue, Customs or Excise should
forfeit the sum of five hundred pounds. The Act was amended by 3 Geo.IV, c.110.
A preamble referred to the Act of 1784 and the Proclamation of 1801, and then
stated "And whereas it is expedient that all Doubts that may have been
entertained as to the Law on this Subject should be removed, and that Provision
should be made for carrying the said Proclamation into Effect; be it therefore
enacted and declared, that from and after the passing of this Act, it shall not
be lawful for any of His Majesty's Subjects whomsoever to hoist, carry, or
wear, in or on board any Ship, Vessel or Fishing Boat, or any other Vessel or
Boat whatever, whether Merchant or otherwise, belonging to any of His Majesty's
Subjects, His Majesty's Jack, commonly called the Union Jack, or any Pendant,
or any such Colours as are usually worn by His Majesty's Ships, or any Flag,
Jack, Pendant or Colours whatever, made in imitation of or resembling those of
His Majesty, or any Kind of Pendant whatsoever, or any Ensign or Colours, other
than those prescribed by the said Proclamation." After detailing those who
could enforce the Act, and where proceedings should take place, the penalty for
offending was set at "Five Hundred Pounds, to be recovered with Cost of Suit"
This was a very severe penalty. In 1820 the total cost of building HMS Beagle,
a ten gun brig, had been only seven thousand eight hundred pounds.
Royal
Assent was given on 5 August 1822, and the provisions of the Act promulgated by
an Admiralty Warrant of 16 September 1822. Other Acts for the Prevention of
Smuggling repeated the section on colours in 1825 (6 Geo IV c.108), 1833 (3 & 4
Will IV c.53) and 1845 (8 & 9 Vic c.87).
1824. The Regulations and
Instructions relating to His Majesty's Service at Sea were revised and approved
by the King in Council, 24 June. The section on non-naval colours read: "All
Ships and Vessels belonging to His Majesty's Subjects shall wear a Red Ensign
with the Union in the Upper Canton next the Staff." It ended with the usual
injunction that ships should not hoist flags appointed to be worn by ships of
the Royal Navy, nor any flags resembling them. Naval officers could seize any
such flags and report the master or owner, so that proceedings might be taken
against them.
[BT 103/308]
David Prothero, 26 November 2010
In 1846 the Governor of Gibraltar forwarded a report from the Admiralty Agent
of the British Steam Packet 'Royal Tar' to William Gladstone, Colonial
Secretary. The Agent had reported that while at anchor at Cadiz, a small trading
brig belonging to Harding & Co. of Dublin had hoisted a
green Ensign with a Harp and Crown in the fly and a Union Jack in the corner
of it. He added that as there was no recognised flag of that colour and pattern
belonging to Great Britain, he had expressed his intention of hauling it down as
had been done on two other occasions in Ireland on board of the same vessel. The
captain of the brig was reported to have said that he hoisted the flag in
compliment to H.M. Pendant, to which the Agent replied that he could not offer
it a greater insult than hoisting what he deemed a Rebel Flag.
In the
covering letter the Governor wrote that in his opinion such a Flag ought not to
be allowed to fly in any port where there was a British Consul and that if met
with on the High Seas might be dealt with as the emblems of a piratical vessel.
The British Consul at Cadiz certainly would be authorised to hold from it, all Consular aid and make a
protest to the Spanish Authorities in the name of the Queen's Government against
its display.
The report was passed on to the Admiralty via the Home
Office. The Admiralty Secretary replied that, "My Lords have no observation to
make on the subject." [HO 45/1557]
David Prothero, 27 November 2010
The Merchant Shipping Act of 1854 (17 & 18 Vic c.120) made the Board of
Trade responsible for matters relating to merchant ships and seamen. Royal
Assent was given on 10 August 1854.
In Section 103. "If any person uses
the British flag, and assumes the British national character on board any ship
owned, in whole or in part, by any persons not entitled by law to own British
ships, for the purpose of making such ship appear to be a British ship, such
ship shall be forfeited to Her Majesty, unless such assumption has been made
for the purpose of escaping capture by an enemy or by a foreign ship of war in
exercise of some belligerent right."
In Section 105. "If any colours
usually worn by Her Majesty's Ships, or any colours resembling these of Her
Majesty, or any distinctive National Colours, except the Red Ensign usually
worn by Merchant Ships, or except the Union Jack with a White Border, or if the
Pendant usually carried by Her Majesty's Ships or any Pendant in anywise
resembling such Pendant, are or is hoisted on board any Ship or Boat belonging
to any Subject of Her Majesty without Warrant for so doing from Her Majesty or
from the Admiralty, the Master of such Ship or Boat, or the Owner thereof, if
on board the same, and every other Person hoisting or joining or assisting in
hoisting the same, shall for every such Offence incur a penalty not exceeding
Five Hundred Pounds, and it shall be lawful for any Officer on Full Pay in the
Military or Naval Service of Her Majesty, or any British Officer in the
Customs, or any British Consular Officer, to board any such Ship or Boat, and
to take away any such Jack, Colours, or Pendant; and such Jack, Colours, or
Pendant shall be forfeited to Her Majesty." [ADM 116/3566]
The Admiralty
stated that this was intended to prevent the use by British vessels of fancy
flags in lieu of national colours. [MT 9/358]
David Prothero, 27
November 2010
In 1859 a launch 'English Packet' owned by Messrs Tobin of Liverpool, was
seized by a boat from HMS 'Vesuvius' on the Congo River off Cabinda, for
carrying British colours when not registered as British. She had been built on
the coast and collected produce from small towns to convey to the Depot. The
seizure was declared illegal. The launch was a British ship and entitled to the
privileges of a British ship, but not entitled to protection. She ought to have
been registered, but there was no penalty for not being registered, and not
liable to seizure for carrying British colours.
[MT 9/9 file 13236]
David Prothero, 27
November 2010
The 1862 edition of Pritchard's Admiralty Digest suggested that there was an
omission in the law on illegal colours. Before 1854 the law was the 1801
Proclamation and 8 & 9 Vic c.87, s.10 giving penalties and procedures. This was
repealed by 17 & 18 Vic c.120, s.4, and the only provision remaining was section
105 of Merchant Shipping Act 1854. This did not say how the penalties were to be
enforced.
The Board of Trade presumed that penal action could be taken in
the Court of Queen's Bench (common law) upon information filed by the Attorney
General. The Admiralty replied that when convenient they would like a clause
inserted giving an easier way of enforcing the law. The Board of Trade suggested
making the offence a misdemeanor under Section 518 giving power to proceed
summarily for a smaller but sufficient penalty. [MT 9/47 file 8961]
The
Admiralty told the Board of Trade that Rear-Admiral Frederick commanding HM
Ships Cork had reported that masters on several occasions refused to show
colours to commanders of gun vessels off the coast of Ireland, asserting that
there was no law that obliged them to do so.
The Board of Trade asked for
a Legal Opinion.
"I am of opinion that it is
lawful for the commanding officer of HM ships of war to compel by force all
merchant ships on the high seas purporting to be British, to stop and submit to
be visited, and that mail packets form no exception to this rule, ........ With
regard to vessels neglecting to show any colours on meeting with HM ships on the
high seas, as in the case mentioned in the letters of HM officers, I should
advise that a Warrant of Arrest should be taken out from the Admiralty Court
against the commander of any such vessel, for contempt of the Royal Proclamation
of January 1st 1801 in neglecting to show the Ensign therein prescribed to be
carried by a British merchant ship. This Proclamation may be referred to in
Ch.Robinson's reports appendix number 11 p.13 and I consider it to be in force
at the present time having been recognised so recently as 1845 in 8 & 9 Vic
c.87, s.10. Travers Twiss, Doctors' Commons (a society of civil lawyers). June
22nd 1864 [MT 10/31]
David Prothero, 27
November 2010
Order in Council, July 9th 1864 "We therefore most humbly submit that Your
Majesty may be pleased by your Order In Council to prescribe the discontinuance
of the division of Flag Officers into the Red, White, and Blue Squadrons and to
order and direct that the White Ensign, with its broad and narrow pendants, be
henceforward established and recognised as the colours of the Royal Naval
Service, reserving the use of the Red and Blue colours for such special
occasions as may appear to us or to officers in command of Fleets and Squadrons
to require their adoption: The Red Ensign and Union Jack, with a White border,
continuing as at present the national colours for all British Ships, with such
conditions in favour of Yachts and other vessels as we may from time to time
authorise to bear distinguishing flags." 9 July 1864, effective 18 Oct 1864.
[ADM 116/3566]
David Prothero, 27
November 2010
11th September 1866. Admiralty to Board of Trade. Enclosing report from Rear-Admiral Charles Frederick stating that many Masters of British vessels refused to show their colours when requested to do so by HM Cruizers. Asked Board of Trade to issue notices cautioning Masters. Board of Trade Minute.
14th September 1866. Mr Fane's Opinion.
"The Admiralty say that Masters
of British merchant vessels have on several occasions refused to show any
colours to the commanders of gun vessels on the coast of Ireland, and have
declared that there was no law nor authority directing them to hoist their
colours. They send an opinion of the Admiralty Advocate, in which he recommends
that in just such a case a proceeding be taken in the Admiralty Court against
the Master for contempt of a Royal Proclamation of 1st January 1801. The
Admiralty now ask the Board of Trade to issue instructions to make Masters of
British vessels acquainted with the duty which is incumbent on them to show
their colours, when required, to HM Cruizers. A Royal Proclamation cannot by
itself create an offence. What punishment the Admiralty court could inflict for
not showing the ensign upon a master whose name has been returned is perhaps not
easier to ascertain than the consequences to a Member of Parliament of being
barred of the House by the Speaker, for being out of order. A Notice to be
published by the Board of Trade in which the Proclamation is merely referred to,
would be of little avail. But if the Board of Trade would make it known that
there are serious consequences for those who disregard it, the Notice might have
some effect. I think we should state this view to the Admiralty, and suggest
that [?] [?] [?] should in the first instance take a proceeding against an
offender, as recommended by their Advocate, and the result of such proceeding
might then, if it is found expedient, be published by the Board of Trade."
5 October, The Vice President.
"I agree with Mr. Fane unless reasonable
suspicion were excited by a vessel neglecting to show colours I imagine a
Queen's officer could not interfere with her. The law rather aims at preventing
unqualified persons from using the colours. Still the practice is to do so and
it is expedient for the [police?] of the seas, and a clause to the effect might
be introduced in any amendment of existing legislation.
10 October. Mr.[Henry C.?] Rothery.
"I entirely concur in the views
expressed by Mr. Fane in the very able Minute which he has written. A Royal
Proclamation may declare what the law is, but it has not power, independently of
Statute, of making the law, or of attaching any punishment to the non observance
of the Proclamation. The Merchant Shipping Act 1854 provides for the case of a
British merchant vessel assuming illegal colours, but is quite silent as to the
power of naval officers to compel merchant vessels to hoist their ensigns. I
think that the answer proposed [?] [?] to be returned to the Admiralty is the
proper one: if the Admiralty thinks that it has the power to compel merchant
vessels to show their colours, let them try to do so, and the Board of Trade
will then know how to act. All I can say is that, if applied to, I shall
certainly not allow a Warrant to issue from any such cause; and if the Admiralty
want to try the point, they must do so by a motion, [requiring?] the Master to
show cause why he did not hoist his colours. I know of no Act, which would
compel him to do so, and the proper course, it seems to me, would be to bring in
a short Act, and then the policy of the [measure?] may come fairly before the
legislature. [MT 10/24]
David Prothero, 29 November 2010
In January 1866 the Admiralty asked the Board of Trade to amend the Merchant Shipping Act 1854 by reducing the penalty of five hundred pounds for illegal colours as this high penalty deterred officers from taking action, and to issue instructions requiring merchant ships to show colours to HM ships after refusals to do so.
20 May 1867. Merchant Shipping (Amendment) Act. Section 105 of the Principal
Act repealed to insert a reduction in penalty, for displaying any colours
resembling those of HM ships or worn by foreign ships of war or national
colours, to not exceeding fifty pounds. [MT 9/36]
David Prothero, 30 November 2010
18 June 1868. Captain Robert Jenkins of HMS 'Royal George' at Kingstown reported S.S. 'Moravian' owned by J & A Allen arrived flying French flag under a red pennant at the main. Company claimed that it was their private ensign before the tricolour became the French national flag. It was a House Flag, not a national flag, and even if a national flag, all ships flew national flags at the main to show from whence they came.
11 Aug 1868. S.S. 'Neptune' of Liverpool, owned by Messrs. J & P. Hutchison, of Clyde St., Glasgow flying French flag.
27 Sep 1868. Dublin. 'William Connel' flying French flag with thistle in the
white panel.
Legal Opinion that Section 105 of the Merchant Shipping Act
1854 probably prohibited only English, not foreign, colours.
As the
result of a dispute following the seizure of the colours of S.S.'Tiverton' by
the commander of HMS 'Euphrates', the Admiralty issued Circular No.6, 4 February
1869.
"Illegal colours were summarily hauled down without previous notice. In
future communication in writing to be sent to master calling his attention to
105th section of Merchant Shipping Act 1854. No further steps unless, after the
lapse of a reasonable time after such communication, the illegal colours
continued to be worn." [MT 9/43]
9 August 1869. The Admiralty wanted the
Board of Trade to change section 105 of Merchant Shipping Act 1854. It did not
prohibit British ships from flying foreign flags, only from flying flags
resembling Her Majesty's flags.
The Board of Trade wrote that foreign
flags were usually hoisted only at the main masthead, where national colours
were not normally hoisted, to indicate the country from which the ship was
coming. Admiralty replied that the practice ought to be stopped. [MT 9/74]
David Prothero, 30 November 2010
30 June 1871. 'Princess Royal', owned by Messrs Langlands & Son, Glasgow,
was chartered to Messrs Vallery frere et fils of Marseilles, to run between
there and Algiers for six months, or longer in their option. The vessel had a
French captain and crew, but an English certificated master and an engineer
were on board to look after the property. The ship remained registered as a
British ship but the French government insisted that she should occasionally
hoist the French flag, and had given her a special licence to do so. The
British consul would not permit the vessel, while British property, to carry
French colours. The company understood that it was not unprecedented for an
English steamer to fly a foreign flag while engaged solely in foreign trade.
21 July 1871. British Consul, Marseilles to Foreign Office.
In accordance
with Foreign Office dispatch No.9 of 19 July, 'Princess Royal' of Messrs
Langlands & Son, Glasgow, sailed wearing French colours.
6 September
1871. London & Edinburgh Shipping Company, Leith, to Admiralty.
"Steamer 'Malvina'
(register no.55121) chartered to a French company under contract to convey
mails from Marseilles to Algiers and other places in the Mediterranean. Must
be done under French flag. Request permission as understood to have been
already granted for another vessel." The Admiralty replied that they had no
objection, but had no power to issue a warrant for a British ship to fly a
foreign flag. Commander-in-Chief, Mediterranean Fleet informed. Customs were
concerned that there might be difficulties over the ship's papers required by
British regulations. The Board of Trade described it as pursuing a "very
illegal and dangerous course", but Admiralty and Foreign Office directed
Consular Officers not to interfere if ships flew French flag, and to provide
normal consular support.
2 October 1871. Admiralty to Board of Trade. Re.
'Princess Royal'.
"Have no power to authorise wearing of any other national
colour than those sanctioned and required by Act of Parliament. Does flying
the French flag debar the vessel
from claiming the protection and assistance of a British consul? Actual
legality in considerable doubt. Board of Trade inclined to think that
Merchant Shipping Act forbids use, except under warrant from Admiralty, of
any national colour other than the Red Ensign. Wearing French colours as
national colours is contrary to the Act." [MT 9/59]
David Prothero, 1 December 2010
