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United Kingdom: 19th Century Red Ensign Legislation (Part 1)

Last modified: 2010-12-29 by rob raeside
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[UK civil ensign] image 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.

See also:

1801 Proclamation

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.

The present Red Ensign is usually said to have been introduced on 1 January 1801, but its use did not come into effect until:
13 January 'for all Ships in the Channel or British Seas, and in the North Seas',
12 February 'from the Mouth of the Channel unto Cape St. Vincent';
12 March 'beyond the cape, and on this Side of the Equinoctial Line, as well in the Ocean and Mediterranean as elsewhere',
and 1 September 'beyond the Line'. [BT 103/308]

David Prothero, 25 November 2010

Prevention of Smuggling Act amended to regulate flags

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

Use of Green Ensign ignored

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

Merchant Shipping Act of 1854

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

Unregistered British ships entitled to wear Red Ensign

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


Omission in the law on illegal colours

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

Squadron Colours abolished

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

Opinions on action required to compel British ships to show colours

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

Penalty for displaying illegal colours reduced

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

Unable to take action against British ships flying foreign colours

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

No action taken against British registered ship flying French colours

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