"Naval Administration" by Sir Vesey Hamilton, G.C.B. (1896)
THE ADMIRALTY PATENT AND THE RESPONSIBILITY OF THE FIRST LORD.
The reader of the foregoing chapters will not have failed to remark that there are peculiarities in the constitutional position of the Admiralty, and a little investigation will show us that the legal origin of the powers exercised by the First Lord, and by the Board itself, present an interesting and instructive study. It was remarked in that part of the Preliminary Report of the Hartington Commission, 1889, which deals with the internal administration of the Admiralty - and I have already adverted to the fact - that the Admiralty is not administered in accordance with the Patent which gives it warranty to act. Under the Patent fall power and authority arc conferred upon "any two or more" of the Commissioners "to do everything which belongs to the office of Our High Admiral," but, in practice, under the Order in Council of March 19th, 1872, the First Lord is made "responsible to Your Majesty and to Parliament for all the business of the Admiralty," and the Naval Lords are made severally responsible to the First Lord for the administration of the business assigned to them. It was in the Order in Council of January 14th, 1869, that this sole responsibility of the First Lord was first officially laid down, but the evidence given by the Naval and Civil Lords before the Select Committee of the House of Commons in 1861 clearly shows that this was but a formal sanction to a practice that had existed long before.
Here, then, is an anomaly which our historical inquiry should enable us better to understand. Dr. Stubbs has confessed that the history of Admiralty jurisdiction is obscure. I shall not find occasion in this volume to deal with the civil jurisdiction of the Admiralty Court (from which the criminal jurisdiction was taken away in 1844), but I may remark that this obscurity clouds that jurisdiction not more than the executive authority of the Admiralty itself. (For the civil and criminal jurisdiction of the Admiralty Courts see; "The Maritime Dicaeologie," 1664; Twiss, "The Black Book of the Admiralty;" Nicolas, "History of the Navy;" Shortland, "Laws which Govern the Navy;" Thring, "Criminal Law of the Navy;" Robinson, "The British Fleet," part ii., chap, v.; Marsden, "Select Pleas in the Court of Admiralty " (Selden Society, 1895), dealing with the Court of the Admiralty of the West, 1390-1404, and the High Court, of Admiralty, 1527-45.) Sir James Graham, who made it his business to inquire into the character and legal origin of the powers vested severally in the First Lord and the Board, came to significant conclusions illustrative of that historical development of the Admiralty which gives it its dominant merits. "The more I have investigated the matter," he said before the Select Committee of the House of Commons, 1861, "the more I am satisfied that, like the common law in aid of the statute law, the power exercised by the Board of Admiralty and the different, members of it, rests more upon usage than upon the Patents, uninterrupted usage, from a very early period." Ten years later, before the Select Committee of the House of Lords, Mr. Bristow, solicitor to the Admiralty, described this judgment as "excessively good sense." It is, indeed, clear that not a tithe of the power exercised by the Board is conferred upon it, in express terms, by the Patent, and the Patent itself is remarkable as conveying powers by reference to antecedent usage. Further, it is clear that the powers of the Lord High Admiral himself, and of the local admirals who preceded him, were exercised by virtue of usage and of the power exercised by the crown in maritime affairs.
We may therefore conclude that there existed antecedent to the Admiralty Patents, and now concurrently with them exists, an elastic and undefined power, based upon usage, which makes it possible for the First Lord -as I shall presently illustrate - to undertake any duties the public safety may require. He is possessed of the utmost authority a single minister can exercise, with the advantage, as Sir James Graham pointed out, of ubiquity in cases where it is required that general instructions should be given to act, whereby a power of expansion is exemplified capable of meeting exigencies that no single minister could possibly exercise. The usage which covers these powers is expressed in the declaratory Act of the 2nd of William and Mary, sess. 2, c. 2, which affirms that "all and singular authorities, jurisdictions and powers which by any Act of Parliament, or otherwise, have been and are carefully vested, settled and placed in the Lord High Admiral of England for the time being, have always appertained to, and of right might have been, and may and shall be had, employed and exercised, and executed by the Commissioners for executing the office of High Admiral of England for the time being according to these Commissions, to all intents and purposes as if the said Commissioners were Lord High Admiral of England."
The Patents of the Admiralty Board, as I have said, falling back upon the Patents of the Lords High Admiral, find their early type in that which Henry VI granted to the Earl of Warwick. They have been granted, with little actual change, to a long series of successive Boards, and the Patent of Queen Anne, save for certain small alterations, omissions and additions, is textually that of Queen Victoria. One change, however, deserves to be noticed. In the Patent of Queen Anne the grant is to "any three or more of you;" it is now, and for a long time has been, to "any two or more of you." The authority for the substitution of two Lords for the three formerly required to legalize any action of the Board is contained in the Act 2 William IV cap, 40. This was an extension of powers conferred by an Act of 3 George IV, authorizing two Lords to sign so long as the Board consisted of less than six members. The reduction in number was, therefore, evidently due to a purpose of saving time and labour in signing, and to avoid any difficulty in finding three Lords at all times. In those days so very many things had to be signed by their Lordships, that it is easily conceivable there must, on occasions, have been much difficulty in keeping the necessary number of Lords in waiting. But, generally speaking, the Patent continued, save for names and descriptions, a document verbatim et literatim the same, and contained obsolete references to vanished Droits of the Admiralty, and to portions of Her Majesty's dominions which no longer existed, and were not easily identified on the map. These obsolete features, with certain exceptions, were removed in 1872, and the Patent has been simplified, but it is interesting to note, as an illustration of their little changing character, that the early Patents of Her Majesty conferred the powers of "Our High Admiral of the United Kingdom of Great Britain and Ireland, and of the Dominions, Islands and Territories thereunto belonging, and of our High Admiral of Jamaica, Barbadoes, Saint Christopher, Nevis, Montserrat, Bermudas, and Antegoa in America, and of Guiney Binny in Africa, and of the Islands and Dominions thereof, and also of all and singular Our Foreign Plantations, Dominions, Islands, and Territories whatsoever and places wheresoever thereunto belonging."
The grants of the Patent now fall into eight main parts. The first gives power to execute the office of High Admiral. By virtue of the second the Commissioners are to issue orders for the building, repairing, and fitting of ships, and to establish wages for the men employed. The third commands the officers of the Navy and naval departments to be obedient to the Commissioners. The fourth charges the Commissioners to propound orders and instructions for the better regulation of the service. The fifth relates to the Droits of the Admiralty. By virtue of the sixth the Commissioners are empowered to appoint the now extinct Vice-Admirals, who were formerly local representatives of the Lords High Admiral, and the seventh gives them warrant to appoint officers to conduct the Civil Departments. The eighth part confers the authority to make contracts, and the Patent now concludes by vesting in the Admiralty Commissioners the powers of the extinct Principal Officers and Commissioners of the Navy and of the Victualling Commissioners. The text of the Patent is as follows:-
"VICTORIA by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, Empress of India. To Our right trusty and well beloved Councillor, A.B., Our trusty and well beloved C.D., E.F., G.H., and I.K., greeting. Whereas we did by Our Letters Patent under the Great Seal of Our United Kingdom bearing date at ___ the ___ day of ___ in the ___ year of Our reign, constitute and appoint the persons therein named to be Our Commissioners for executing the office of Our High Admiral as therein mentioned during Our pleasure. Now know ye that we do by these presents revoke the said Letters Patent. And further know ye that we trusting in your wisdom and fidelity of Our especial grace do by these presents constitute and appoint you to be Our Commissioners for executing the office of Our High Admiral of Our United Kingdom, and of the Territories thereunto belonging, and of Our High Admiral of Our Colonies and other dominions, whatsoever, during Our pleasure. Granting unto you or any two or more of you, full power and authority to do everything which belongs to the office of Our High Admiral, as well in and touching those things which concern Our Navy and Shipping as in and touching those which concern the rights and jurisdictions appertaining to the office of Our High Admiral, And We do grant unto you, or any two or more of you, full power and authority to make orders for building, repairing, preserving, fitting, furnishing, arming, victualling, and setting forth such Ships, Vessels, and Fleets, with all things belonging to them as to you, or any two or more of you, according to your best discretion shall seem fit; and also to establish and direct such entertainments, wages, and rewards for and unto all such persons as are employed in any of Our services under you or in anything appertaining thereunto, and to give such discharges for those services, or any of them as to you or any two or more of you, with the consent of the Commissioners of Our Treasury in all cases where such consent has heretofore been required, shall seem fit. And We do command all Our Officers of Our Navy and all others in any Department of Our Naval Service that they be from time to time attendant to you, and do observe and execute all such orders as you or any two or more of you give touching Our Naval Service. And Our will and pleasure is that you, or any two or more of you, do from time to time propound unto Us such ways and means for the establishing such orders and instructions for regulating Our Navy as shall be found agreeable to Our Service, and as may increase Our power and forces by sea, and remove such defects and abuses as may prejudice the same, and especially may keep the Mariners in good order and obedience, to the end that thereupon we may take speedy and effectual course for the supplying of all defects and reforming of all abuses. And whereas all wrecks of the sea, goods, and ships taken from pirates, and divers rights, duties, and privileges have been by express words or otherwise heretofore granted to Our High Admirals for their own benefit as duties appertaining to the office of Our High Admiral. It is Our will and pleasure that all casual duties and profits be taken and received in all places where they shall happen by the officers of the Admiralty or other proper officers appointed as by law required in that behalf, in such sort as they formerly were or ought to have been taken and received when there was a High Admiral, or as they now are or ought to be taken and received; and the officers so taking or receiving the same shall account for the same and every part thereof to the proper officers appointed in that behalf, and the same shall be applied in such manner as the law directs. And whereas all offices, places, and employments belonging to the Navy or Admiralty, are properly in the trust and disposal of Our High Admiral, and our High Admirals have constituted Vice-Admirals under them. Now Our will and pleasure is that all such officers, places, and employments, as shall become or be made void during the vacancy of the office of Our High Admiral shall be given and disposed of by you or any two or more of you. And you or any two or more of you may constitute Vice-Admirals for such places where Vice-Admirals have been usually appointed by Our High Admiral for the time being, or where you may in your discretion from time to time think fit. And know ye further that we do grant unto you full power and authority from time to time by warrants under the hands of any two or more of you, and the seal of the office of Admiralty, to appoint such officers for conducting the business of the Civil Departments of our Naval Service, and for superintending our Naval Arsenals, Dockyards, Victualling Establishments, and Naval Hospitals within Our United Kingdom or elsewhere, as to you shall seem necessary, and from time to time, as you shall see fitting, to revoke the appointments of any such officers, and appoint others in their stead, strictly enjoining all such officers, and all others whom it may concern, to be obedient to you in all things as becometh. And, moreover, we grant unto you, or any two or more of you, full power and authority to make or cause to be made on Our behalf, all requisite contracts for the hire of vessels and for the supply of Naval, Medical, and Chirurgical Stores, and of victuals, provisions, and other necessaries for Our Fleets and Naval Service, and for the performance of works in relation thereto, and for any other services as in your discretion shall be from time to time found necessary for the better carrying on of Our Naval Service; and generally to execute and do every power and thing which formerly did in any respect appertain to the office or duties of Principal Officers and Commissioners of the Navy and of Commissioners for Victualling the Navy, and for the care of sick and wounded seamen in the Service, or which they or any of them collectively or individually, as such officers and Commissioners, could have lawfully executed or done. In witness whereof we have caused these Our Letters to be made Patent. Witness Ourself at Westminster, the ___ day ___ in the ___ year of Our reign.
"By warrant under the Queen's Sign Manual."
The instruments by which the Patent is, in terms, overruled upon the question of responsibility are the Orders in Council of January 14th, 1869, and March 19th, 1872, but these, as I have said, merely give formal sanction to long pre-existent practice. The First Lord is made responsible to the Queen and Parliament for all the business of the Admiralty, and the other Lords and the Parliamentary Secretary are made responsible to the First Lord for the business with which they are charged, each in his own department, though his responsibility is not easy to define. It is almost impossible to define the responsibility of the Permanent Secretary.
The question has often been mooted whether it would not be well to bring the Patent into harmony with the usage expressed in the Orders in Council, but against this there is a very decided consensus of the best opinion. Sir James Graham, who fully recognized that, whatever the Patent might be, the Board of Admiralty could never work unless the First Lord were supreme, was nevertheless of opinion that there would be great danger in attempting to touch the Patent, and this is the opinion of our best constitutional lawyers. Admitting the highly beneficial elastic power possessed by the Admiralty Board under the Patent, and the prompt and flexible character of the business methods that results, the reasons for leaving the sanctioning instrument intact are obvious. Expressio unius exclusio alterius [The express mention of one thing excludes all others]. Sir James Graham, who held a very exalted view concerning the sole and supreme authority of the First Lord, said, before the Select Committee of the House of Commons, 1861; "If you pass a new Patent, everything which you omit will be held to be superseded, everything which, you do not include in terms will be held not to be granted, which is exactly the inverse of the present state of affairs; the Patent of the Board of Admiralty, in direct terms, gives very little to the Board." It would, in short, be impossible to convey and define by Patent the authority, powers, and character of the Board, for the reason that these themselves are, in fact, incapable of precise definition.
Quite apart from the circumstance that the far greater part of the Admiralty business is conducted outside the Board - in a manner to be explained when I come, at the close of the volume, to describe the working of the Admiralty machine - there appears to be, in certain exceptional acts regarding the work of the Navy, a direct government without a Board. Thus, when Lord Gambier was sent to Copenhagen in 1807, he was instructed to obey all orders from the King, through the Principal Secretary of State for War, and in this way he received orders to attack Copenhagen, which were unknown to all but the First Lord. In a similar way the Secretary was despatched to Paris in 1815, with instructions to issue orders as if from the Admiralty, when directed to do so by the Foreign Secretary, who accompanied him; and these orders resulted in Napoleon's capture. These instances were cited by Sir James Graham before the Select Committee of the House of Commons, 1861, in order to illustrate the elastic power under the Patent which enables the First Lord to undertake any duties the public safety may require. The promptitude with which Lord Barham acted on receipt of the news brought by the Curieux from Lord Nelson, when following Villeneuve home, is another illustration of this elastic power. An abundance of other examples might be cited to prove that procedure dictated by high policy has often been given effect through the supreme authority vested in the First Lord, without the intervention of his colleagues, though almost invariably with their knowledge.
It is not surprising that this feature of Admiralty methods, combined with the fact that much business is conducted by individual Lords under the First Lord's direction, should have led many to question the value of the Admiralty as a Board. This was a view somewhat accentuated after the definition of the First Lord's sole responsibility in 1860. Thus Mr. Vernon Lushington, Permanent Secretary to the Admiralty, expressed the opinion before the Select Committee of the House of Lords in 1871, that the Board answered no good purpose. He did not like a Board that existed for merely formal ratifying purposes, considering it absolutely detrimental to the public service that a Board which did nothing, and took no responsibility, should be the authority under which orders were finally issued. Mr. Baxter, too, the Parliamentary Secretary, regarded the Board as "a fiction" not worth keeping up, and would have abolished it altogether.
The Order in Council of 1869, by describing the Lords of the Admiralty as the "assistants" of the First Lord, and by specifically defining their duties, had, in fact, partially disabled the Board.
An illustration of this - throwing some light upon the difficulties that attend the definition and distribution of responsibility - was the action taken by Mr. Childers, First Lord, in relation, to the loss of the Captain in 1870. The court-martial had expressed the "conviction" that the ship had been built "in deference to public opinion expressed in Parliament," and through other channels, and in opposition to the views and opinions of the Controller and his department, and that the evidence all tended to show "that they generally disapproved of her construction." Mr. Childers thereupon, on November 30th, 1870, issued a minute with the authority of the Board, but which had never been brought before the Board, wherein the professional reputation of Sir Spencer Robinson, a Lord of the Admiralty, and Controller of the Navy, was considered to be impugned. In short, and in the words of the draft report of the House of Lords' Committee in 1871, "Mr. Childers, being himself nominally responsible for sending this vessel to sea, constituted himself a judge of the case, and, exempting himself from all blame, distributed censure among a number of persons, while he placed the chief weight on the Controller, who had been by a former Board specially released from this responsibility."
This unique case contributed largely to reinstate the Board in its former position, and to bring about the subsequent reorganization of the Admiralty. The legal view as to the inutility of the Board had never found favour with the Lords of the Admiralty nor with naval officers, and is probably now altogether abandoned. Those who know the inner working of our naval administration best, recognize the high value of the consultative functions of the Board, which brings together the highest professional opinion for the guidance of the First Lord, and, enabling its members to discuss every question among themselves, greatly benefits the service by the free interchange of those ideas which build up our naval policy, and lead to the means for carrying it into effect.
As I have said, the question of final responsibility is not in all respects clear. It has been discussed before several Parliamentary Committees. Sir Charles Wood, a former First Lord, said, in 1861, that he had never read the Patent nor heard of anyone having read it. He had been guided by the "prescriptive usage, which is a sort of tradition in every office," and he considered the responsibility of the First Lord to the Crown and to Parliament to be direct and absolute, and that the First Lord was singly and personally responsible for the sufficiency of the fleet which involved the safety of the country. This had been the view of Sir James Graham. It was not, however, shared by Sir Arthur Hood, First Naval Lord, who expressed the view, before the House of Commons Committee in 1888, that in the matter of the sufficiency of the fleet the Board collectively are responsible. Sir Anthony Hoskins regarded the First Lord as "absolutely responsible for everything," but somewhat modified this view by saying that the Board collectively, some Lords more, some less, are responsible for the designs of ships. It is unnecessary to pursue the question of responsibility further. What is clear is that the First Lord being responsible, the other Lords are responsible to him for the advice they give; and Sir Evan MacGregor, Permanent Secretary, has expressed the view that their responsibility ends when they have given their opinion at the Board to the First Lord. (The particular Orders in Council which, with the Patent given in this chapter, are the instruments under which the Admiralty is administered, will be found in Appendix II.)