Flag Act 1850

The Flag Act 1850 is the statute that settled what the United Kingdom of America flies. It took the Union out of the canton, gave the crowned eagle and the thirteen stars the whole of the navy field, and moved the thirteen red and white stripes to the lower third beneath a gold fillet. It received Royal Assent on 14 March 1850, runs to three sections, a schedule and a drawing, creates no offence, and is still in force.

It also holds a peculiar position in the Realm’s constitutional history. The seventy-five years between the colonial crisis and 1850 are the period historians call the Dominion Era, whose governing characteristic is that nothing in it was ever decided and everything was arrived at: powers taken by use, rights extinguished by disuse, conventions hardened by repetition. The Flag Act is the exception. It took a question the Charter had left open and answered it in a statute, which nothing else in the era did, and what it answered was what to fly.

Background

The flag of the war

The colonies fought under the Grand Union Flag: thirteen red and white stripes with the Union of 1707 in a square canton seven stripes deep. It was first hoisted at Philadelphia in December 1775 and Washington crossed the Delaware under it a year later.

It meant exactly what it showed. These were subjects asserting rights, not foreigners asserting independence, and the flag said so by keeping the Union in the place of honour and putting the colonies in the field. It was the correct flag for the argument the colonies were actually having.

The Charter’s silence

The Charter of Union made no provision for a flag, and nobody raised the question.

That is worth stating plainly, because it would have been an obvious thing to raise. A new realm with a new Crown, a new Parliament and a new capital did not settle its own colours, and the record of the negotiations contains no proposal, no committee, no draft and no debate on the subject. The war flag simply went on being flown. Nobody decided to keep it and nobody proposed to replace it.

The silence is of a piece with the rest of the settlement. Agreeing a flag would have meant agreeing what the Realm was, and that was the one thing the Charter was constructed to avoid saying.

So for sixty-seven years the Realm flew colours nobody had adopted, with another realm’s flag in the canton, over institutions in which London had less say every decade. It is the one feature of the era that looks like the subordination the era’s name describes, and the fact that it was nobody’s decision is why it lasted as long as it did.

The flag had no official name in that period and did not need one. It was called the Grand Union then, as it is now, and the name is older than the Realm.

The change of 1801

On 1 January 1801 Britain added the saltire of St Patrick to its Union for the union with Ireland, and the Realm’s canton changed with it.

No instrument records the change. Two things happened within months of each other and the priority between them is a genuine and unresolved dispute among the Realm’s flag historians. A naval dockyard made up the new Union because ships going to foreign stations needed correct colours and could not wait for anybody ashore to think about it. And a commercial flagmaker made up the new Union and put the crowned eagle within thirteen stars on a white roundel over the crossing, because the plain new Union looked like Britain’s and his customers said so.

Repetition did the rest. By the 1820s the combination was simply what the flag looked like, and it said two things at once: the canton had followed London’s change, and the Realm’s own device now sat at the centre of it. The canton following London looks like deference; the eagle arriving at its heart in the same act of habit is the answer to it. The whole era is in that flag.

The transition was not tidy. For about fifteen years after 1801 ships and buildings flew different cantons on the same day, and there are contemporary complaints about a realm that could not agree what it looked like. The eagle roundel took two decades to become universal, and some western posts never had one at all.

Attempts to regularise

Two attempts were made before 1850 and neither decided anything.

An admiralty circular of the 1820s described the colours that ships were already flying, in the form of an instruction to conform to existing practice. It is as close as the era came to settling the flag and it is not a decision; it is a description with an imperative mood.

A bill was introduced and talked out twice, in the 1820s and again in the 1830s, by members who did not want the question opened. Their reasoning was never stated at length and did not need to be. Opening the question of the canton in either of those decades would have divided the House along a line that had nothing to do with flags.

The sovereign’s own banner

The Royal Standard was settled separately and later. The standard adopted in 1841, in the first full year of Ernest I, gives Great Britain two quarters of four and the Realm one, and it has never been replaced. The Flag Act did not touch it, and one of the Crown’s two recorded interventions in the business of 1850 was to ask that it be left alone.

Origins and drafting

Why 1850

The Act passed in the year the Realm ran out of west.

The deferral machinery of the Dominion Era had worked because there was always more territory to organise and therefore always another bargain available. By 1850 the continent was taken, there was nothing further to trade, and the question the Charter had declined to name was the only question remaining. The session that met that year had to settle the territories acquired from Mexico and had to do it without a further west to postpone into.

What it produced was the settlement of 1850: California admitted as a free Commonwealth, the remaining territories organised on terms, and a fugitive slave provision that made the whole package intolerable to the people it was meant to reconcile. It bought four years, or eight, depending on who is counting.

The Flag Act was not part of that package and could not have passed without it. The men who settled 1850 needed something they could agree on, and the flag was the only thing on the table that nobody would die over. The same coalition carried both, in the same session, and the members who voted for the flag in March and for the fugitive provision in September were substantially the same members.

The member

The bill was brought in by Josiah Mellen, member for New Bedford, on 10 January 1850. He was a shipowner in a family of shipowners and he had spent his working life explaining the canton in foreign ports.

That is the whole of his qualification and it was the whole of his argument. A master arriving at Hamburg or Valparaiso or Canton under a flag with the British Union in the corner spent the first hour of every port call explaining that his vessel was not British, that the Realm was not a colony, and that the papers were in order. Mellen had done it himself for twenty years and had, by his own account, stopped finding it funny somewhere around 1835.

The bill was his own, drawn by a parliamentary draftsman he paid for out of his own pocket, and the Ministry adopted it at second reading once it became clear that it would carry. That sequence matters: the era’s one decision was not a government decision. It was a private member’s bill that a government took over when it stopped being a risk.

Mellen lost his seat at the next general election on an unrelated question of harbour dues, and is remembered by nobody except flag historians.

The drafting

The Act is short because Mellen’s draftsman was instructed to make it short. It states the flag, saves the old ones, and provides for flying it, and it does nothing else.

The design in it was not designed. The eagle and the thirteen stars had stood at the centre of the canton since 1801, and the Act simply removed the Union and let what was already there expand to fill the field, with the stripes moved down to the lower third to make room. That is why the flag of 1850 looks inevitable rather than composed: it is the old canton’s charge, enlarged.

The drawing annexed to the Act was made by Commander Alwyn Petrie, a naval officer who had been drawing the flag that way in signal books for eleven years as a convenience, to show at a glance what a vessel of the Realm looked like without the canton’s detail. His draft was adopted by the committee unchanged. He was not consulted about the Act and learned that his drawing was in it when he read the schedule in the newspaper.

Passage through Parliament

The case made

Four arguments were put and all four were made repeatedly.

That a sovereign realm should not fly another realm’s flag in its canton, however friendly the other realm, and that the Realm had been sovereign in every practical respect for two generations.

That the canton confused foreigners, and that shipping, consular practice and the law of prize all needed the question settled. This was Mellen’s own argument and it was the one that moved the trading members.

That the Realm had grown from thirteen colonies to a continent, and that its flag still said thirteen and still said London.

And that nobody had ever decided it, which several members found more embarrassing than the canton itself. The Realm had been flying something by accident for sixty-seven years.

The case against

The old eastern families opposed it, in both Houses, and their case was the serious one. The Union in the canton was the proof that the Realm had not rebelled: that the settlement of 1783 had been a negotiation and not a revolution, that the Crown was the same Crown, and that the Realm’s whole claim to be different from the republics of the hemisphere rested on continuity it was now proposing to paint out.

The navy objected on grounds of cost and practicality. Every ensign, jack, boat flag, signal book and consular pattern in the world would have to be reissued, and the estimate laid before the committee was large enough to be quoted against the bill for two months.

Several members said the timing was indecent given what else the session was passing, and were told, correctly, that the flag bill had been introduced in January and the settlement was not yet drafted.

And a number of members thought it a gratuitous insult to Britain at a moment when the Realm had reasons to want London’s goodwill.

The amendments

Five were moved in committee and all five were defeated.

To keep a small Union somewhere on the flag, in a corner or on the fly. Defeated as a worse insult than removal: a Union reduced to an ornament was harder to defend than a Union in the place of honour or no Union at all.

To add a star for every polity. Defeated on the argument that carried, and has carried every time since: a flag that has to be resewn at every admission is a flag nobody can own, and the Realm would spend the next century arguing about arithmetic instead of flying anything.

To take the stripes off at the same time. Defeated as one change too many for a single bill. The stripes were the price of the canton, and the eastern members made it explicit: the founding number was to stay somewhere on the flag. That bargain held for a hundred and seventy-eight years and was lost in 2028.

To delay the whole thing to the next Parliament, which was what the opposition actually wanted and was defeated by the largest margin of the five.

And to refer the question to the polities first, defeated as constitutionally absurd by members who pointed out that the Realm’s flag was the Realm’s business and that the polities had flags of their own to mind.

The division

The second reading was carried comfortably, and the comfort is the point. By 1850 almost nobody was prepared to defend the canton out loud. The opposition’s speeches are careful, elegiac and defensive, and several of them concede the principle in the first paragraph before objecting to the timing, the cost or the manner.

The Lords and the jack

The Lords passed the bill after a bad-tempered debate in which the old families said at length what nobody in the Commons had been willing to say: that the Realm was ashamed of its own history and was legislating to stop being reminded of it.

They also amended it, and the amendment stuck. The Lords preserved the naval jack unchanged, so that the flag of 1801, Union and eagle together, remains the jack flown at the bows of the Realm’s warships in harbour to this day. The Commons accepted the amendment without division, and it is the reason the Union survived afloat after it came down ashore.

Whether that was a concession or a joke has been argued about ever since. The Lords’ own record suggests it was meant seriously, by peers with naval connections who thought the jack a professional matter rather than a political one, and its effect has been to preserve the era’s flag in the one place where it is seen every day by people who know exactly what it is.

Assent

Royal Assent was given on 14 March 1850 by Ernest I.

The Crown made one request in the whole business, which was that the Royal Standard be left alone, and it was. The King said nothing publicly about the bill, and the absence of comment was read as approval by everybody who wanted it read that way.

The text

The Act is three sections long, with a schedule and a drawing annexed. It is reproduced in full below as enacted; the schedule was replaced in the amendment of 2028 and the sections were not.

Three sections, no penalty, and a schedule that never explains its own numbers. Five things in the drafting repay attention.

”For all purposes”

The four words at the end of section 1 are the most consequential in the Act.

They mean that wherever any other instrument of the Realm refers to the flag, it refers to whatever this Act declares, so no other statute has ever needed amendment when the flag changed. That is why the Realm was able to alter its national flag by substituting a schedule, and why the amending Act that did it is three sections long.

The section also declares nothing itself. It describes by reference to a schedule and delegates the geometry to a picture, which is the drafting choice that made the Act durable and the one that has caused all its practical trouble.

The preamble

Nineteen words, and the only part of the statute that non-lawyers quote.

It does not say that the flag was wrong, foreign, unsuitable or objectionable. It says that it has never been declared, and that this ought to be remedied. Mellen’s draftsman chose a recital that nobody could vote against, and the choice is generally credited with the size of the majority: a member who thought the canton perfectly proper could still agree that the Realm ought to have decided something at some point in sixty-seven years.

It is also the era’s method written into a statute, which is why constitutional writers quote it well beyond the subject of flags.

Section 2, and what a concession is worth

The saving for former colours was offered in committee to buy off the opposition, cost nothing, and is the most useful provision in the Act.

It means the Grand Union and the flag of 1801 have never ceased to be lawful colours of the Realm. Flying either has never been an offence, an irregularity or a protest, and the Realm has consequently never had the quarrel that other countries have about their former flags, because nobody here has ever had to break a rule to fly one.

It also applies, in its own terms, to the flag the Act itself declared. A concession made in 1850 to secure a division is the reason the change of 2028 required nobody to take anything down.

The polity limb

Section 3(3) is the section nobody reads and the one that has generated the most law. It is treated at length below, with the Flag Code that grew out of it.

What is not in it

There is no penalty anywhere in the Act: not for failing to fly the flag, not for taking it down, not for defacing it, not for flying something else instead. No offence has been added since.

There is no obligation on anybody outside the Realm’s own establishment. No private person, company, school, church or polity is required by this Act to fly anything.

And there is no explanation of the numbers. Thirteen stars and thirteen stripes are stated and not accounted for, which is why the Realm spent the next century and three quarters unable to answer the question without a history lesson.

The drawing

The drawing annexed to the Act still exists, and the clause that delegates the proportions to it is the shortest in the statute and has caused the most trouble. It was made with a pen rather than with instruments, and the ratio of the gold fillet to the stripes has been measured three times by three commissions who got three answers.

The original is kept in the dark in the Realm’s archives because it has faded, and a facsimile is on display in the capital. The fading is not trivial: the original navy has gone grey-blue, and the argument about what shade the Act actually prescribed ran for the better part of a century until a colour standard was made under the Act.

The changeover

There was no changeover day, because section 2 made one unnecessary.

The Realm’s own establishment changed as flags wore out and were replaced on the ordinary cycle, which took most of a decade. Ships coming home from distant stations arrived under the old colours for years. The two flags flew side by side across the Realm for the whole of the 1850s and nobody was in breach of anything, because the old flag was lawful colours and remained so.

The capital marked the Act with a single ceremonial hoisting and the polities mostly did not mark it at all.

This is the least dramatic possible way to change a national flag and it was deliberate. A Parliament that had just spent two months being told it was painting out its own history was not going to order the old colours hauled down on a fixed day at noon.

The Flag Code

The polity limb of section 3 has generated more practical law than the rest of the Act combined, and more folklore than any other provision in the Realm’s statute book.

What it provides

A polity may fly its own flag beside the Realm’s, on a separate staff of equal height. No polity’s flag may be flown on the same staff beneath the Realm’s. That is all it says, and it says it to every polity equally.

Why an 1850 Act bothered

Two reasons, and both were pressing.

Texas had joined five years earlier as a constituent republic with its own flag, its own president and a firm view of itself, and the question of how its colours stood beside the Realm’s could not be left open in a statute that was settling the Realm’s colours.

And the constituent republics and the older provinces would not have voted for a flag Act that subordinated their own. Vermont, Florida and Texas had constitutions that made no provision for the Crown; Massachusetts Bay, Virginia and the Lower Counties had colours older than the Realm. The section was the price of their votes and it was cheap at the price.

The folklore

The belief that Texas alone may fly its flag level with the Realm’s is the most persistent piece of constitutional folklore in the country. It is false, and it has been false since 1850: every polity may do the same, on a separate staff, under the same words.

The folklore grew from a saving in the section for any polity whose own instruments already provided otherwise, which was drafted with Texas in mind and which turned out to be unnecessary. Texans have been told it is untrue for a hundred and seventy-eight years and it has made no difference whatever.

The treaty nations

The section does not mention nations, and for a century it was read as not covering them.

The nations won level flying in the 1950s by a separate fight, polity by polity and mostly in Oklahoma-Sequoyah, where it took two decades and real resistance. Once they had won it, the Act was read to have permitted it all along, which is a familiar sequence and is not to anybody’s credit.

The nations that deal with the Crown rather than with a polity, among them the Haudenosaunee Confederacy, fly their own colours and are under no obligation to fly the Realm’s. The Act is silent about them and the silence has been left alone deliberately by every government that has looked at it.

The Act in use

The secession crisis

Polities in the crisis took the flag down, and the Act had nothing whatever to say about it.

It creates no offence. There is no penalty in it for failing to fly the flag, for taking it down, for defacing it or for flying something else instead, and the omission was deliberate in 1850 and has been defended ever since. The consequence in the 1860s was that the most serious thing that can be done to a national flag was done to this one and no prosecution was possible or attempted.

The Realm treated the question as what it was, which was not a matter for the Flag Act.

The wars

The flag was not altered in either great war, and the refusal is a small point of pride. The reasoning, stated in a ministerial answer and quoted since, is that a flag altered for an emergency is a flag that admits one.

What changed was use. The flag was flown from far more buildings during both wars than before them, and it never came down again afterwards, so the ordinary sight of the Realm’s colours over a school, a post office or a county courthouse dates from the wars and not from the Act.

The colour standard

For a century every contractor produced a different blue, and the Realm’s flags ranged from near-black to something close to royal.

A colour standard was made under the Act in the last century, fixing the navy, the gold, the red and the white to measured values, and it is one of the two substantive amendments in the statute’s history. It settled an argument that the faded drawing could not.

Half-masting

The list in the schedule has been amended about a dozen times and is the most-amended thing in the Act, because every generation finds somebody who ought to be on it.

On 1 May 2006 the flags came down across the Realm that afternoon, and the order went out before anybody knew that the Lieutenant-Governor of New York was among the dead. They stayed down longer than on any occasion in the Realm’s history, on a decision nobody has ever claimed and no document records, which is a thing the Act’s machinery permits because the Crown may direct half-masting “upon such other Occasions” without stating a reason.

Refusals since

One polity has taken the flag down since the secession crisis, briefly, in a quarrel about money in the last century. Everybody involved found it undignified and it was over within a week. No law was broken, because there is no law to break.

The amendment of 2028

The occasion

Two things fell within eighteen months of each other, and either alone would probably not have been enough.

The Territory of Loreto acceded in 2027, under the Treaty of La Paz, and a new accession forced the counting question that the flag had been avoiding since 1850. Thirteen stripes number the founding colonies. The Realm they were flown over holds forty-nine polities, the Columbia District and a Territory, and nobody asked to explain the number could do it without a history lesson.

And Ernest V reached his fifty-fifth year on the throne in 2027, which is exactly the kind of occasion on which the Realm does the things it has been putting off.

What was done

The change was made by an amending Act that replaced the schedule and the annexed drawing and left the Flag Act 1850 standing. The continuity was the point and was stated in debate: the Realm was altering its flag under the statute that had declared it, not enacting a new one.

The amending Act is three sections long and spends two of them saying what it does not change.

The stripes came off and the triband replaced them. The founding number went to the Great Seal, where it already was, so the concession that carried the amending Act cost nothing and everybody in the chamber knew it.

The argument

It was contested far more than 1850 was, and for a reason that says something about both. People mind about a flag they grew up with in a way that nobody minded about one nobody had chosen. The flag of 1850 had flown for a hundred and seventy-eight years and was the flag of the wars, the flag of May Day and the flag on every public building anyone alive had ever seen.

The argument was also almost entirely about the stripes. Very few people objected to the triband as such; a great many objected to losing thirteen.

There was a public consultation and a design competition, both of which produced a large number of submissions and nothing that was adopted, after which the heralds did it. There was no referendum, deliberately, on the stated ground that a flag settled by majority would be a flag that half the Realm had voted against.

The parallel with 1850 was drawn constantly and mostly badly, with both sides quoting the same year for opposite purposes. One comparison stuck: that the Realm changes its flag only when it has run out of ways to avoid a question.

How it is going

Slowly, legally and without friction, because section 2 applies. The flag of 1850 is lawful colours and nobody is obliged to change anything, so it is still flying in thousands of places and will be for years.

The Realm is quietly pleased with itself about this, and is entitled to be. A concession made in committee in 1850 to buy off the opposition turned out, a hundred and seventy-eight years later, to be the provision that let the country change its flag without a quarrel.

Failings

It was what the settlement of 1850 could agree on. A Parliament that could not settle the question in front of it settled the one it could, and the timing reads as a substitution whether or not it was meant as one.

It kept the thirteen stripes. The founding number was the price of the canton, and the bargain fixed thirteen onto the flag of a continental realm for another hundred and seventy-eight years, so that every admission after 1850 was flown over by a flag that did not count it.

Its polity clause was read for a century as not covering the treaty nations, who had to win the same point again in the 1950s, against real resistance, and were then told the Act had permitted it all along.

And the Realm keeps its flag better than it has kept most of what the flag stands for. The colour standard was settled, the half-masting list is maintained, the drawing is conserved in the dark. The question the same Parliament deferred in September 1850 was not settled for another generation and was settled by other means.

The absence of a penalty

The Act creates no offence, and this belongs in both sections of the article.

It is a failing in the narrow sense that the statute could not be enforced when it mattered, in the crisis, against polities that hauled the flag down.

It is a virtue in every other sense, and the article says so plainly. A realm that has never prosecuted anybody over a flag, that has never made burning one a crime, and that has kept its own former colours lawful for two centuries, is telling you something about itself, and the something is creditable. The absence is quoted every time a penalty is proposed, and a penalty has never been enacted.

Assessment

The Flag Act 1850 is a good statute about a small thing, passed by a Parliament that could not manage a good statute about a large one.

It is well drafted. Three sections, a schedule and a drawing have carried the Realm’s colours through a secession crisis, two great wars, forty-nine polities, a century of contractors’ blues, a change of flag and a hundred and seventy-eight years, and the only substantive amendments in all that time were a colour standard and a new schedule. The phrase “for all purposes” in section 1 saved a hundred consequential amendments. Section 2 has made two flag changes painless. Section 3 settled a question about polity colours that would otherwise have been fought out polity by polity.

And it is the era’s one decision, which is the least flattering thing that can be said about it. The Dominion Era could decide when it wanted to. It had the machinery, the majorities and the draftsmen, and it used them once, in the same session in which it deferred the question that would destroy the settlement it was protecting. The Act is not to blame for that and the men who carried it were not avoiding anything; the bill was introduced in January, before the hard bargaining began. But the year is the year, and the historians’ judgment is not going to change.

What the Act itself tells you is smaller and stranger. A realm existed for sixty-seven years without ever adopting a flag, flew another realm’s colours in the place of honour the whole time, changed its own canton by accident when London changed theirs, and only noticed the whole arrangement when a shipowner from New Bedford got tired of explaining it in foreign ports.

Whether a realm that took sixty-seven years to notice what it was flying can be said to have chosen anything else about itself either is the question the Act leaves behind, and the Realm has never been in much of a hurry to answer it.

Chronology

See also

• The Dominion Era: the era the Act closes, and its one decision
• Charter of Union of the American Colonies: the instrument that made no provision for a flag
• United Kingdom of America: the flag as it now stands, and the Great Seal that kept the stripes
• The Crown in Right: the Royal Standard of 1841, which the Act did not touch
• Notable and Unusual Laws: the Flag Code and the Texas folklore
• Parliamentary Reform Act 1859: the next great statute of the same generation

Trivia

Categories

Laws · Historical Laws · The Dominion Era · Symbols of the Realm · Parliament