Ian Stafford’s article examines the legal history of the creation of colonial navies within the British Empire during the Victorian Era.
This paper looks, through the medium of the legal opinions given to Ministers regarding the Australasian colonial navies, at the United Kingdom government’s response to a conundrum: a colony is a territory without sovereignty but a navy is an exercise in sovereignty. As Government believed, “there was no precedent in history to which an appeal could be made in determining the status of a naval force provided and maintained by a separate community which is not at the same time a Sovereign State.” [i] Bringing legal advice to the fore shows that in repeating requests for the same advice Her Majesty’s Government had little collective memory and that Ministers were indeed uncertain as to the status of the colonial naval vessels. It also shows their inability to solve adequately the issue with the colonies which, it may be suggested, acted without reference to London.
If a colonial navy is defined as one where the immediate chain of command runs from the vessels or the local naval board (or to the relevant governing body in the case of Chartered Companies’ forces) to the colonial executive rather than direct to Admiralty in London, then throughout the history of the British Empire there has been a number of colonial navies such as the Bombay Marine, Hudson’s Bay Company vessels, the sea militia of Nova Scotia, Provincial Marine of Upper Canada, the Royal Canadian Navy, the navies of the six Australian colonies and the Royal Australian Navy, the first and second New Zealand navies, and the Royal New Zealand Navy.
If the early navies did not give rise to the need for extensive legal advice it is necessary to ask why those of the British Australasian colonies in the 19th century did. Timing is one answer. The development of international law and the assertion of national sovereignty meant that the world had changed; ambiguity between a pirate ship and a man of war or privateer was no longer acceptable. Metropolitan governments were increasingly forced by circumstances to keep control of colonial activities lest they place them in conflict with other nations. Another answer relates to the powers under which the navies functioned.
In an example of an armed force formed before the 19th century, the 1670 charter of Hudson’s Bay Company was quite explicit in empowering the company to have a navy:
By way of contrast, the colonial devolution acts that granted internal legislative powers to the colonies of settlement such as the New South Wales Act 1853, did not deal with the transfer of specific powers so much as the establishment of legislatures and legal systems. [iii] One reason for this, perhaps, was that the Crown retained the right to disallow colonial legislation if it opposed Imperial policy; and indeed until the passing of the Colonial Laws Validity Act 1865 there were further limitations on the power to diverge from English law. [iv]
New South Wales ventured first with the building of Spitfire, but it was Victoria that followed with a proper internal enactment – the Armed Vessels Act. [v] This was however disallowed by the Crown:
The government of New Zealand, first in 1846 and again in the 1860s war against Maori tribes, obtained armed river-vessels to pursue the war up the Waikato River; they were however commanded by Royal Navy officers. [viii] This fudged their status internationally but they were under local and not Admiralty control. At the same time an armed ship, Victoria, which the Colony of Victoria put into service notwithstanding the United Kingdom’s opinion of the Victorian legislation, transported reinforcements to New Zealand from Victoria and took part in bombardments of Maori positions whilst she was there. [ix] The United Kingdom government was sufficiently worried about the status of such a vessel to request further legal opinion. In 1860 lawyers, having said that the colony’s legislation was ultra vires, gave the following opinion regarding the warship belonging to the colony of Victoria.
The first request to London for the right to possess armed vessels came from the government in New South Wales. They asked, in 1863, for a line battleship to serve as a block ship for Sydney harbour. Admiralty had been prepared to accede to the request on certain conditions, but a change of the Colonial Ministry meant that the matter was dropped. [xi]
So a valid interpretation would be that the United Kingdom was caught out by the presumption of the colonies to start a navy. On that basis the Imperial Colonial Naval Defence Act 1865 (hereinafter, the “1865 Act”), which was intended to regularise the matter, can be seen as a remedy rather than a policy initiative on the part of the British government.[xii] The 1865 Act was more complicated than it needed to have been. Instead of simply devolving naval competence to the colonies, it set up a two-stage process. Section 3 empowered the colonies to enact their own legislation to provide naval vessels provided that they had first been authorised to do so by an Imperial Order-in-Council. Admiralty was also empowered to accept by further Order-in-Council any vessel established in the colonies as a Royal Navy vessel. The Bill also included provisions relating to a naval reserve and implied that the colonial vessels would be part of a naval reserve – rather like the militia on land. Thus certain matters such as the power of extraterritoriality for the colonies to apply their legislation on vessels beyond their waters was not dealt with, nor was the question of discipline on board.
Looking at the debates on the passage of the Bill for this Act we see that either the Colonial Secretary, Edward Cardwell, was drawing a veil over the House or he was confused as to the scope of the Bill. He seems to have been selling it as an extension of the Naval Reserves and as a means to reduce British expenditure. He said that the Bill would develop the qualities of self-reliance of the colonies so relieving the United Kingdom of a great burden:
He saw the wishes of the colony of Victoria to have a warship as secondary although the other provisions of the act would allow her to do so:
The debate confirmed that the driving force for colonial naval power came from the colonies. Many historians assert that the 1865 Act gave the colonies powers to create their own navies. Rather, Ministers seem to have envisaged the 1865 Act empowering the colonies to legislate with Imperial sanction a sea-militia comprising naval reserves and amounting to a coastal or harbour protection force. It can be argued that as that role was not explicit in the legislation it may be the cause of the subsequent misunderstanding of the Act.
The Act was inadequate for creating a pelagic navy in that it did not grant extra-territorial powers for the colonies as respects vessels created under its provisions but taking into account that Victoria had been used on the high seas, it may be deduced that Ministers feared that the colonial vessels might routinely be used beyond the colony. The problem was that colonial ships could physically sail beyond their colony without committing any offence, but while doing so they would literally be without the law. However as a matter of maritime law they ought to be flagged. If these vessels were given the privilege of flying the White Ensign they would have to be commissioned as Royal Navy ships, which would destroy their status as colonial ships. The solution was to be found in classifying them as Her Majesty’s auxiliary ships and they were flagged accordingly. Admiralty instruction specified-
These legal opinions of the 1860s were clear enough to have settled the issue but twenty years later the matter again required legal advice.
During the Sudan campaign to relieve General Gordon, Victoria Colony offered the use of its new warship – the new Victoria. Some analysts suggest that that the offer was not taken up because there was confusion in London concerning the status of such a ship, namely whether it was a merchant ship or a warship. [xvi] Lawyers advised, that before an Order-in-Council could be passed under Section 6 of the 1865 Act – the section enabling Her Majesty to accept the services of Colonial vessel – it was necessary to pass an Order-in-Council under section 3 of that Act authorising them to have warships. [xvii] However it would appear that no such imperial Order-in-Council was actually made. There is a high probability that none ever was. Subsequent Government and legal sources do not make reference to it and the absence of such an Order-in-Council seems to have been confirmed in a later set of legal instructions. In the end Government said there was no duty upon which the Victorian vessels could be usefully employed. [xviii]
The Commonwealth of Australia Constitution Act 1900 authorized the Commonwealth to provide by appropriate legislation for the maintenance of armed vessels of war independent of the Admiralty within the waters of the Commonwealth. [xix] A more difficult question arose as to whether the Act had authorized naval defence beyond those waters. That Act of 1900 did not confer independence on Australia and her status in law was the same as that of the former Australian colonies. It was clear to the lawyers that if such defence were to have been strictly confined to territorial waters as internationally understood it might have been wholly inadequate.
To deny that authority to provide for naval defence which had been conferred on the colony would be futile. On the other hand, to have given unrestricted authority for naval operations irrespective of any territorial limits would have been to confer a privilege of sovereignty on a colony, while the international responsibility for such an exercise, would have rested with the United Kingdom. The terms of the statute are therefore wide enough to have authorised a colony to use armed vessels independently of the Royal Navy and the authority of Admiralty. [xx]
Before Australian federation, Westminster was aware that the Colony of Victoria’s legislation for the maintenance of Naval and Military Forces appeared to rely the schedule to the Victorian Consolidation Act of 1890. Whitehall further understood that in the Colony of New South Wales, the Military and Naval Forces were raised and regulated by an Act of 1871. In drawing this to the attention of Law Officers, the Colonial Office observed that neither of these Acts referred by name to the 1865 Act. More significantly they said there was no trace of either Act having been approved by Her Majesty in Council. They observed that the only volunteers and officers who could be accepted for general service in the Royal Navy under the 1865 Act were volunteers and officers raised by a particular Colony ‘in accordance with the provisions of this Act.’ Lawyers noted, there was no trace of any Order-in-Council having been made under Section 3(4) of the 1865 Act. [xxi] The Colonial Office and Admiralty needed to find a way out of this. They wondered if it would be sufficient to place the officers and men whose services have been accepted on ships books with their colonial rank in order to make them subject to the imperial Naval Discipline Acts. The failure to comply with the 1865 Act meant that there was an important lacuna in the legal links to naval discipline law. The Law Officers opined that the Officers and Men belonged, for the time, to Her Majesty’s Navy. Thus the Law Officers found a neat way round the lacuna by suggesting that the men should be borne on the books of one of Her Majesty’s Ships in Commission thus bringing them within naval discipline legislation. However, it was not explained why this administrative procedure could not have been thought appropriate in all cases without the two stage system of Orders-in-Council contemplated by the 1865 Act.
In the early years of the new century the political situation began to induce a change in London’s views of colonial navies. Fisher reorganised the Navy by concentrating large modern ships primarily to be based in Home waters, thus leaving parts of the Empire denuded of Royal Navy presence. The advantage of having colonial navies at the disposal of Admiralty came to be seen as reinforcements to the Empire strategy. Whereas previously colonial navies had been dismissed as some local effort that spared Admiralty expense but which contributed little to Admiralty strategy, the new threats from Germany meant that Admiralty eventually conceded that colonial navies could be part of the grand strategy. If they were to be part of the grand strategy their status and means of control had to be considered, requiring legal review of the status of the colonial navies yet again.
So cometh the hour, cometh the advice!
In spite of all the previous legal opinions, the Edwardian Admiralty dealt with the matter of colonial naval legal competence as if it were something new. Admiralty conceded that the colonies could have their own fleets: a new policy emerged in the course of a number of Imperial and Naval Conferences, namely that battle squadrons should be developed by each of the colonies which would be balanced in naval capacity and which could be placed at the disposal of Admiralty in time of war. Whitehall embarked upon reconsideration of the status of such colonial forces through an interdepartmental committee. In fact, there had been a long-standing disagreement between Admiralty and the Colonial Office on the territoriality of the colonial navies. Back in 1884 when Law Officers opined that the colonies could not equip and arm vessels and engage or raise crews to man them without the sanction of the Imperial Parliament, [xxii] the Colonial Office objected that this opinion must only refer to sea going vessels and did not touch therefore on the question of local defence. The Law officers then clarified their opinion to the effect that the colonies could provide for harbour defences . Yet in 1908 Admiralty was still saying that it was not clear that the Law Officers in 1884 were relying on the right of everyone to repel invasion and to preserve the internal peace of the colony, or whether they thought the colonies had legislative power for this harbour defence. The Australian constitution empowered the federal Parliament to make laws for “the Naval and Military Defence of the Commonwealth and of the several states and the controls the forces…”[xxiii] Law Officers in 1908 also considered that the 1865 Act did not contemplate the colonial navies acting outside orders from Admiralty independently of the Royal Navy. But, they considered, the Commonwealth of Australia Constitution Act did allow the maintenance of armed vessels of war independent of Admiralty within territorial waters. So it seems that the Commonwealth Act had a material effect on the interpretation of the 1865 Act without expressly amending it. The delineation of powers between the legislative levels within Australia gave an added dimension to the status of colonial navies. No such advice can be found regarding Canada, but the British North America Act 1867 seems to confer a similar power. Further, because the question of closer ties between the colonial navies and the Royal Navy was being discussed in this period, lawyers also advised that officers of the colonial navies would come under Royal Navy orders inside or outside the territorial waters.
What is even stranger is that in 1908 it was Admiralty which asked the interdepartmental committee on naval defence to give an opinion. This seems to have been included in the above opinions and the committee’s report. Nonetheless, in one confidential memorandum, dated August 1910, Admiralty stated that the problem of the status of colonial ships of war in international law was unique and that there was no precedent in history to which an appeal could be made in determining their status. Admiralty was now certain that the new colonial fleets should have international status as British ships. However in considering the question of whether the Australian vessels would be recognised internationally as British ships, the Departments concerned decided that it was a matter which could be determined merely by the United Kingdom saying so and the Foreign Office informing other nations. In this they appear to have been persuaded by the Santissima Trinidad case before the United States Supreme Court. [xxiv]
Whereas in the years after 1865 legal opinion and Admiralty instructions set out that the colonial vessels should fly the colony’s blue ensign and be classed not as United Kingdom warships, but as Royal Navy auxiliary vessels, in 1909 it was decided that all that was necessary was that the vessels could be allowed to fly the White Ensign. This they were to do for decades afterwards.
Throughout the considerations it was assumed that in time of war the Dominions would place their fleet at the service of Admiralty. When the time came in 1914 muddle preceded action. The Australian began positioning their fleet for action. The United Kingdom signalled her “warm appreciation”. On 3rd August 1914 the Australian Government signalled: “In event of war Government prepared place vessels of Australian Navy under control British Admiralty when desired”. The reply thanked them for their readiness; but silence followed. Thus on 6th August Australia re-signalled –“Do you wish previous cable regarding Australian Fleet to be regarded as transfer to Admiralty control?” On 8th Admiralty said they would be grateful if transfer would be made now. [xxv] The exchange indicated that the means of transfer was not clear and it seems that neither the Governor-General nor the defence minister were familiar with Admiralty plans for the adoption of the Australian navy.
The British government had sought for over half a century to find a proper status for the colonial forces. In all that time their ambivalent position in being a sea-force that was not recognised as a national force was never satisfactorily answered, until 1914. Then suddenly the issue was solved, though not by the operation of the 1865 Act which the colonies had largely ignored, but by a proclamation made under the Australian Naval Defence Act 1910:
The colonial navies were, after all, the Royal Navy.
i PRO ADM 116/1100c
iii 18 & 19 Vic. C.183
iv 28 & 29 Vict. c. 63
v Glen St. J Barclay, The Empire is Marching, Weidenfeld and Nicholson, London, 1976
vi PRO TS 25/2019, Harding, Bethel, Atheron, Phillomore, Collier, 21st December 1860:
vii Sovereignty extends beyond land and internal waters to an adjacent sea; Halsbury Laws of England, Vol.18(2) Para
699. The United Kingdom retained sovereignty over the territorial sea but she treated it as part of the pertinent colony.
ix C Jones, Australian Colonial Navies, Australian War Memorial, Canberra, 1986, p.21
x PRO TS 25/2019
xi PRO WO/6 Colonial Office 2 nd August 1868: memorandum for Cabinet; and see C Jones, Australian Colonial
Navies, Australian War Memorial, Canberra, 1986, p.21
xii 28 & 29 Vict. c.14 hereinafter the “1865 Act”
xiii HC Deb, 2 March 1865, vol. 17, cc 1027-30
xvPRO; MT 10/21 Colonial Office, 4 th January 1866
xvi See K Inglis, The Rehearsal, Rigby, New South Wales, 1985
xvii PRO TS/25, James, Herschell, Staverley Hill, 8 th February 1884
xviii HC Deb 19 February 1884 vol. 284 col.6
xix 63 & 64 Vict., c. 12
xx PRO ADM 116/1100C, p.13
xxi PRO TS 25/2019, 30th October 1900
xxii PRO TS 25/2019
xxiii Section 51(vi)
xxiv The Santissima Trinidad – 20 U.S. 283 (1822): The commission of a public ship of a foreign state, signed by the
proper authorities, is conclusive evidence of her national character. http://supreme.justia.com/cases/federal/us/20/283/
xxv A W Jose, Official History of Australia in the War 0f 1914-1918, Vol. IX, (1987 ed.), p.7
xxvi ibid. Appendices p. 595