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United Kingdom: 19th Century Red Ensign Legislation (Part 2)

Last modified: 2012-01-20 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:

Board of Trade Minute on National Character

September 25th 1871. Marine Department, Board of Trade.
Quotation from (Wheaton's ?) International Law, edition 1866, note 163.
"Where a state has authority to enquire into the national character of a merchant vessel apparently of another state, for any purpose, whether of war or peace, it cannot be bound by the flags or papers used. It can go behind the ostensible nationality indicated by these and ascertain the actual nationality, which depends on the domicile of the owner and other facts. The state may, if it chooses, hold the ship concluded by the fact of having used the flags and papers she has knowingly carried, if that result is favourable to the interests of the state. This is normally done in war, and may be done in peace. It is simply the application to the inquiry of a rule of conclusive prescription as estopped against a party. Whether it shall be enforced depends on state policy. The vessel cannot claim the application of the rule in its own favour." End of quotation.

"It will thus be seen that a vessel of one nation assuming the character of another takes upon itself the risk of both, and possesses the full immunities of neither. And it cannot be said that such an international doctrine is at all unreasonable. The question actually referred is, 'whether the fact of flying the French flag debars the vessel, from claiming the protection and assistance of a British consul.' This question is too wide to be answered by a simple negative or affirmative and it involves considerations not only of municipal but of international law.

Municipal Law
As regards British municipal law, I am distinctly in favour of the view which the Admiralty appears to take, but I think it right to observe that Mr. O'Dowd appears to dissent from this view in some important particulars; and that if the words 'or any distinctive national colours' are to be taken literally as meaning the colours of any nation, Mr. O'Dowd's view of the subject, as far as relates to the application of the Merchant Shipping Act 1854, Section 105, is undoubtedly correct. But I must give it as my opinion, without denying for a moment that there may be arguments in favour of the literal interpretation, that the words first quoted must be taken with the context; and according to the doctrine so often applied by the Courts as the words '(two indecipherable, probably Latin words)' must be held to mean any distinctive British national colours. I consider therefore that section 105 does not forbid a British vessel to hoist foreign colours and does not give authority to British consular officers, i.e. to take away such colours. In short, I consider the whole of that Section, including the part relating to a Warrant from Her Majesty or from the Admiralty, to be inapplicable to the case of a British vessel flying foreign colours. I am equally of opinion that Section 103 para 2 of the same Act is inapplicable to the present case for it only relates to matters or things done or papers or documents carried, with intent to conceal the British character of such ship from any person entitled by British law to inquire into the same, or to assume a foreign character, or with intent to deceive any such person as lastly hereinbefore mentioned; and though the words 'as to assume a foreign character' appear to stand alone, I consider that, like the rest of the paragraph, they are meant to contemplate a fraudulent, or, at least, a deceptive intent. In a case like the present, where the owners come openly to ask permission, there can be no intent to defraud or deceive, so that I consider the paragraph to be inapplicable. I am not aware of the existence of any other enactment which bears on the subject, and I am therefore of the opinion that, as far as municipal law is concerned, the 'Princess Royal' flying French colours under the circumstances described is subject to the same liabilities and entitled the same privileges as any other British vessel.

International Law.
With regard to international law the situation is entirely different. It is simply impossible that a vessel, British according to British law, voluntarily assuming, in the eyes of all maritime nations, the character of a French ship, can lay claim to all the immunities of a British ship sailing under British colours. Supposing for instance, that a vessel belonging to a nation at war with France were to fire a signal to bring her to, and, sailing on, were to fire into her, is it reasonable to suppose that the British government could demand any apology or reparation? Such a question is rather for the Foreign Office than for me; but I cannot conceive that there can be any doubt about the answer. I think, speaking generally, that as regards International law, the 'Princess Royal' cannot in all respects claim the protection and assistance of a British consul in the same way as British vessels carrying the British flag. [MT 9/59]

"Well established principle of International Law that the owner of any ship using a national flag and assuming a national character cannot upon any trial or judicial proceeding be allowed to urge to his own advantage or in his own defence, that the flag and character so assumed, are not the flag and character which properly belong to the ship." [MT 9/53]

David Prothero, 2 December 2010

Written notice to be given before seizing colours

1. Admiralty Circular No.17, 21 February 1874.
Seizure of Illegal Colours hoisted on board merchant vessels.
Sec.105 of MSA 1854. Only Red Ensign and white bordered Union Jack allowed on merchant ships. Lawful for any officer on full pay in Military or Naval Service of HM and British Officer of Customs or any British Consular Officer to board ship and take away illegal colours.

2. Before so doing Naval officer will send communication in writing and allow reasonable time to elapse.

3. In any Home Port seek approval of superior authority; in Foreign Port communicate with consul or otherwise avoid giving offence to Local Authorities.

David Prothero, 3 December 2010

1845 Act repealed

1875. Statute Law Revision Act repealed 1845 Act for the Prevention of Smuggling.
David Prothero, 3 December 2010

Fancy flags not prohibited

24 July 1883. Consul at Corunna reported that a Fenian flag had been hoisted by Mr. Kelly, Master and owner of Brig 'Trio' registered in Dublin. Fenian flag considered to be a national flag.

The Board of Trade minute.
"No prohibition of fancy flags or even rebel flags if they do not resemble colours of Her Majesty's ships or national colours. Had not been flown at the peak the only place flag worn to show nationality. Consul acted under Instruction 18 referring to 'improper colours'. It should be altered to 'illegal colours'." [MT 9/222 file 1883]

David Prothero, 3 December 2010

Requirement for British ships show colours to HM ships questioned

31 October 1884. Captain Robert H. Boyle of HMS 'Tourmaline', Sheerness, to Vice-Admiral Corbett, C-in-C. Reported British merchant ships not showing colours when passing. [MT 9/222 file1883]

4 November 1884. Admiralty forwarded the report to the Board of Trade, adding, "Great shipping companies not wanting in this matter. Influx to steamer class introduced a class of master in need of instruction. What steps will Board of Trade take re failure of ships to show their colours ?"

Board of Trade Minute.
"So far as the action of Captain Boyle was concerned it was no doubt founded upon the Queen's Regulations of 1879, Clause 88; 'Should a British merchant ship refuse to show her colours to one of HM ships, the name of the ship, of the master and the owners are to be ascertained and one or more affidavits of the facts are to be taken on the first occasion that offers, before a consul or other competent authority and transmitted to the Admiralty with a full report of the occurence.' The command of the Navy has always been a prerogative of the Crown of England, and no other authority need be sought for the regulations in question.

There still remains the question under what authority British shipmasters are required to show their colours to HM Ships. A refusal or omission to do so can hardly be held to be a 'matter or thing done or permitted to be done with intent to conceal the British character of the ship from any person entitled by British law to enquire into the same or with intent to deceive such person' within the meaning of Sec.103 Merchant Shipping Act 1854, but perhaps that section may furnish a sufficient text for the issue of a circular. Still the matter may in certain circumstances be of real importance, and as the Admiralty have addressed the Board of Trade they might be asked whether they are aware of the origin of the regulation requiring Naval officers to report a refusal, and of the authority under which a British ship is required on signal to show her colours to a man-of-war. It is possible that it may turn out to be one of those customs of the Navy, handed down by prescription from the earliest times when the Sovereign had supreme command of the Navy and jurisdiction over merchant seamen."

20 November 1884. Board of Trade to Admiralty. "Agree there is more than just courtesy involved, signals concerning distress might be ignored, but by what authority is a British merchant ship required to show colours to one of HM ships?"

24 November 1884. Admiralty to Board of Trade. Considering the matter.

25 February 1885. Royal Courts of Justice; Henry James, Farrer Herschell and Alex Staveley Hill.
An officer of HM Ships is only 'entitled to enquire', when he has reasonable grounds for believing that the merchant vessel is engaged upon illegal business which would entail a forfeiture. Under such circumstances he may call upon her to disclose her character, and may take every step necessary to verify the same.

David Prothero, 4 December 2010

Proposed Bill on Displaying Colours

9 March 1885. Admiralty to Board of Trade. Suggests a Bill requiring showing colours as desirable, and thus giving legal sanction to a time-honoured custom.

25 March 1885. Admiralty to Board of Trade. Propose to introduce Bill making it incumbent upon British merchant vessels under moderate penalty to display National colours and Distinguishing Flag on being signalled by HM ship. Also to amend Sec.105 of Merchant Shipping Act 1854 to obtain power to enforce penalty thus providing for wearing improper colours. [MT 9/360]

30 March 1885. Board of Trade to Admiralty. Agree.
31 March 1885. Admiralty Bill to be drafted.
17 April 1885. Draft Bill.
22 November 1886. Draft Bill sent by Admiralty to Board of Trade.

David Prothero, 4 December 2010

Legal Opinion on Draft Bill, 27 November 1886

"If National Colours other than the Red Ensign etc. are hoisted on board a ship belonging to a subject of Her Majesty then besides the penalty of five hundred pounds, any of Her Majesty's Naval or military officers on full pay may board such ship and take away such colours, and they are forfeited.

By Section 103 [2] if the Master or owner of any British ship does or permits any matter or thing with the intention to conceal the British character of such ship 'from any person entitled by British law to enquire into the same'  or to assume a foreign character, or within intent to deceive such person etc., the ship shall be forfeited and the Master, if the offender, shall be guilty of a misdemeanour.

The obligations upon Her Majesty's subjects are therefore complete enough, and the penalties sufficiently severe, but it may be open to question whether they cannot be to easily evaded in the very cases where they have been infringed. If under Section 105 improper national colours are hoisted, then the ship may be boarded, and if under Section 103 [2] there is concealment of national character 'from any person entitled by law to enquire' then the penal consequences shall follow.  The Law Officers have advised that an officer is only 'entitled to enquire' when he has reasonable grounds for believing the ship to be liable to forfeiture.

I presume these matters have been duly considered and that it is deemed either too serious in an international point of view to empower HM's ships in time of peace to board a merchant vessel and 'take every step necessary to enable the Naval Commander to verify her national character', or it has been considered that the new enactment itself implicitly confers such a power. The latter alternative seems however open to doubt. In any case I merely call attention to the points in compliance with Mr. Gray's request for my observations and suggestions from a legal point of view."

Note in margin. "The Bill seems to me to be harmless and very mild. It is certainly right in principle." [MT 9/360]

3 December 1886. Board of Trade agree to draft Bill.

David Prothero, 5 December 2010

Foreign Flags

Feb 1887. White Star steamer 'Gaelic' of Liverpool was in Hong Kong flying Chinese flag at the fore and Red Ensign aft. Chinese flag removed by Harbour Master on the orders of the Admiral. White Star sought legal opinion which was that any flag could be flown providing that the Red Ensign was also flown. No further interference.

David Prothero, 6 December 2010

Green Ensign

24 Oct 1888. British Consul, Dunkirk informed the Foreign Office that the Schooner 'Guild Mayor' of Drogheda, entered on 19th inst. wearing an Irish Ensign, a green flag with the Union Jack in the corner but without the harp. Phillip Owens, the Master, had written that a green Flag with the Union Jack in the corner was the one generally used by vessels of his port when entering ports of England, and that until then no authorities or any other person had told him it was wrong.

12 Nov 1888. Board of Trade Solicitor. "It was not even the flag used by Irish ships before the Union as this contained a harp on a green ground and in the corner a red St George's cross on a white ground." Green ensign a mainly fancy flag and not an improper flag. Union Jack in corner shows no attempt to conceal British character of the ship, nor to assume foreign character. Does not resemble British National colours as defined. [MT 10/529]

David Prothero, 6 December 2010

Red Ensign used to indicate arrival from foreign port

1888. Hartlepool Ship-Owners queried the need to display an ensign. Normally hoisted only to show Customs that the vessel was arriving from a foreign port. [MT 10/529]

David Prothero, 6 December 2010

Red Ensign to be defined the national flag for British merchant ships

1888. 5 December. Board of Trade "Looking to the doubtful state of the law as to the flying of 'fancy flags', i.e. Irish Ensign."
1889. 4 March. Board of Trade. Decision made to insert a provision in the Merchant Shipping (Colours) Bill, defining the Red Ensign, with certain exceptions, as the proper national flag for all British merchant ships. [MT 10/528]

David Prothero, 6 December 2010

Manx Red Ensign

24 Oct 1888. British Consul, Dunkirk informed the Foreign Office that the barque 'Lady Elizabeth', of Castletown, had entered on 20th wearing Manx three legs in yellow in plain red part of Red Ensign, and asked if this was allowed. The Foreign Office asked the Board of Trade who were told by the Admiralty  that no warrant had been issued.

Board of Trade file.
5 Dec 1888. Looking to the doubtful state of the law as to the flying of "fancy flags". Reference to recent case concerning the Irish Ensign.

28 January 1889. "Until provision is made as to the time when a British merchant ship is to hoist her flag in evidence of her nationality it is difficult to make out that a breach of the law has been committed."

4 Mar 1889. "They are going to insert a provision in the Merchant Shipping (Colours) Bill, defining the Red Ensign, with certain exceptions, as the proper national flag for all British merchant ships."

4 March. Admiralty Opinion. "Gist of section 105 of Merchant Shipping Act 1854 is to prevent a British merchant ship from making herself out to be a British man-of-war. Red Ensign now no longer used by the Royal Navy, but it was at the time of the Act, and until the Act is amended must be considered one of HM's colours, especially as Admiralty never relinquished authority over Red Ensign. While Manx Red Ensign is not one of HM's colours, it resembles one of HM's colours." [MT 10/528]

David Prothero, 6 December 2010

Merchant Shipping (Colours) Bill 1889

Notice given, 14 May 1889.
Question to be put, 17 May 1889, by Lord George Hamilton.
Bill printed 20 May 1889.

"1889. A Bill to amend the law relating to the use of flags in the British Merchant Service.
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

  1. The red ensign usually worn by merchant ships, without any defacement or modification whatsoever, is hereby declared to be the proper national colours for all ships and boats belonging to any subject of Her Majesty, except in the case of Her Majesty's ships or boats, or in the case of any other ship or boat for the time being allowed to wear any other national colours in pursuance of a warrant from Her Majesty or from the Admiralty.
  2. (1) A ship belonging to any subject of Her Majesty shall, on a signal being made to her by one of Her Majesty's ships, and on entering or leaving any British or foreign port, hoist the proper national colours.
    (2) If default is made on board any such ship in complying with the requirements of this section, the master of the ship shall incur a penalty not exceeding one hundred pounds.
  3. (1) Any penalty incurred under section one hundred and five of the Merchant Shipping Act, 1854, in respect of the improper hoisting of colours or of a pendant on board any ship or boat belonging to any subject of Her Majesty, with the cost of recovering the penalty, may be recovered in Her Majesty's High Court of Justice in England or Ireland, or in the Court of Session in Scotland, or in any Vice-Admiralty Court within Her Majesty's dominions.
    (2) Any offence mentioned in that section may also be prosecuted, and the penalty for it recovered, in the same manner as if the offence were an offence declared by the Merchant Shipping Act, 1854, to be punishable by a penalty not exceeding one hundred pounds. Provided as follows:
    (a) Where any such offence is prosecuted as last aforesaid the Court imposing the penalty shall not impose a higher penalty than one hundred pounds; and
    (b.) Nothing in this section shall authorise the imposition of more than one penalty in respect of the same offence.
  4. The expression "one of Her Majesty's ships" includes any vessel being under the command of an officer of Her Majesty's Navy on full pay.
  5. Nothing in this Act shall affect any power of the Admiralty in respect of the red ensign usually worn by merchant ships.
  6. This Act may be cited as the Merchant Shipping (Colours) Act, 1889, and shall be construed as one with the Merchant Shipping Acts, 1854 to 1887, and those Acts and this Act may be cited together as the Merchant Shipping Acts, 1854 to 1889."
The Bill was amended, 28 May, 3 June and 17 June. The proposals that the penalty should not exceed twenty pounds, and that the need to hoist a Red Ensign should not apply to vessels engaged in the coasting trade of the United Kingdom were defeated, but an exemption for fishing vessels that were registered, lettered and numbered, was passed.

In October a Notice about the Act appeared in the Board of Trade Journal and two hundred posters were distributed.

David Prothero, 7 December 2010

Instructions to consuls

Feb 1890. Merchant Shipping (Colours) Act 1889 made it necessary to amend Instructions to Consuls. It was emphasised that it applied only to National Colours, that Section 105 of Merchant Shipping Act 1854 prohibited hoisting other than British Colours and that the 1889 Act repeated them. Intention of the Admiralty was to prevent use by British vessels of some fancy ensigns in lieu of national colours. [MT 9/358]
David Prothero, 8 December 2010

Foreign Flags Again

22 Feb 1890. Admiralty. Every mail steamer sailing from Queenstown flies American Ensign at fore, and also on arriving New York. General practice in most parts of the world.

8 Mar 1890. Referring to Cunard and White Star Lines; "Usual to fly American Ensign at fore on leaving or entering port, and also to fly at fore ensign of any country when an important official of that country happens to be on board. British Ensign still flown in normal place in addition." [MT 9/358]
David Prothero, 8 December 2010

Where to fly National Colours

In May 1890 the question of where the National Colour should be flown was raised. The Secretary to the Admiralty wrote, "It is to be inferred that the impression exists that the proper position for the National Colour is at the peak or ensign staff, but my Lords point out that the law makes no definite provision in this respect, nor would it in their opinion be practicable to lay down any rule on the subject. [MT 9/358]
David Prothero, 8 December 2010

Red Ensign as a signal

In November 1890 it was pointed out that coasters hoisted the Red Ensign as the signal that a tug was required. The Admiralty suggested using the Red Ensign made into a weft, but the Board of Trade wrote that a weft in open waters generally meant, "I wish to communicate", and suggested that tugs should agree another signal. The use of the Red Ensign as a tug signal was to be deprecated. In war every merchant ship would have to show colours to Forts and Men-of-War etc.. [MT 9/360]
David Prothero, 8 December 2010

Merchant Shipping Act 1894

Merchant Shipping Act 1894 (57 & 58 Vic c.60) Effective 1 January 1895.
Consolidation of Acts relating to Merchant Shipping since 1854. The whole Act can be seen at  Sections 68 to 72 covering 'National Character and Flag' are substantially sections 103 and 105 from the 1854 Act, and sections 73 to 75 are the 1889 Act. The requirement to hoist colours on entering/leaving British port was now restricted to vessels of 50 tons gross or more. [BT 103/308]
David Prothero, 8 December 2010