The curious expression "should legally wear" seems to have reference to the fact that the legality of the old striped ensign of the Company had recently been called in question, and its use, except as a jack, had in consequence been abandoned. It will be observed that the Warrant makes no mention of a broad pendant, but the Bombay Marine (or Indian navy as it was called after 1830) evidently still made use of it, for in 1848 the officer acting as commander-in-chief of H.M. ships on the East Indies Station objected to the flying of the red broad pendant, and as a result it was decided that the Commander-in-Chief of the Indian navy should fly a broad pendant, red with a yellow cross, and the Company's cognisance of the yellow lion rampant, holding a crown, in the upper quarter next the staff, the Commodore of the Indian navy serving in the Persian Gulf being allowed a similar flag with a blue field[317].
In 1858, when the Government of India was transferred to the Crown, the military and naval forces were transferred with it, but the Indian navy did not find favour in the eyes of its new masters, and it was abolished. This took place in 1863, when the following ceremony was observed:
At noon on the 30th inst. the broad pennant of Commodore Frushard will be saluted by eleven guns from the battery at the Apollo Pier. The flag of the Indian Navy, long known as "the Company's Jack," will then be hoisted at the Castle flagstaff and saluted by twenty-one guns. At the close of the salute the Indian Jack will be hauled down, the broad pennant of Commodore Frushard and the pennants of all the Indian Naval vessels in harbour will be struck, and the Indian Navy will cease to exist as an effective service[318].
A new "Bombay Marine," consisting of a few small vessels engaged in the local transport and pilotage service of that port, similar to one that had already come into existence at Calcutta, was thereupon instituted. The Indian Marine Service Act of 1884 made provision for placing the vessels belonging to the Government of India under the Naval Discipline Act in time of war, and for constituting such ships vessels of war in the Royal navy. At the same time a warrant was issued authorising the vessels of the Indian Marine (to which the Prefix "Royal" was added in 1892) to fly a blue ensign with a badge of the Star of India in the fly, and a Union jack with a blue border. These vessels were in November, 1921, authorised to fly a red pendant when in commission.
[(ii) PRIVATE MEN-OF-WAR]
The "private man-of-war" or "privateer[319]" was a vessel the owner (or owners) of which had received from the Crown, or from the Lord High Admiral, "Letters of Marque and Reprisal." The occasion for the issue of such a licence, which was originally granted in the form of Letters Patent—whence the name—might be either special or general. It might be issued "specially" to some merchant who was able to prove that he had suffered certain losses from the action of the subjects of some foreign power, and who was thereupon authorised to make seizure of any ships or goods belonging to subjects of that State until he had by that means taken sufficient plunder to make good the losses formerly sustained by him, but no more. Such licences were also issued "generally" upon the outbreak of hostilities with a foreign state, to any subjects who wished to make war upon enemy vessels on the chance of making some profit by it, and who were able to give satisfactory security that they would comply with the regulations laid down for their conduct, particularly in the matter of the disposal of prizes taken. During the wars of the late seventeenth and eighteenth centuries merchants frequently sought Letters of Marque for their vessels, not because they wished them to take the offensive as regular privateers, but because they were thereby freed of all danger of being classed as "pirates" should they attempt to turn the tables upon any enemy that attacked them. For this reason many, perhaps most, of the ships of the East India and Guinea Companies fitted out in the seventeenth century carried Letters of Marque and displayed the Union jack.
Indeed, despite the issue of the Proclamations of 1634 and 1674, it seems that all privateers in the seventeenth century were in the habit of wearing the Union jack—sometimes with the permission of the authorities, but more often without it—with the object of making themselves look (so far as flags were concerned) as much like the king's ships as possible. The instructions for privateers issued toward the end of that century indicate that there was some infirmity of purpose on the part of the authorities in enforcing the existing law as regards the wearing of the Union jack. Thus the Instructions for privateers operating against Algiers[320], issued in December, 1681, provided
That the merchants, captains, and others who shall have such letters of marque or commissions as aforesaid shall not weare in their said ships our Union flagg or jack (which is intended to distinguish our owne ships of warr from all others) at no time nor upon no pretence whatsoever, unless they be warranted for so doing by an order of leave under our hands and seal of our lord high Admirall or Commissioners of the Admiralty,
whereas the Instructions for Privateers fitted out against France issued in May, 1693, merely ordered that the Union jack or pendant (which actually were illegal without special warrant) should not be worn in presence of H.M. ships or in circumstances in which they might give occasion to a salute by a friendly foreign power.
That such merchants, commanders of ships, and others, who shall obtain such letters of marque or commissions as aforesaid shall not wear our colours, commonly called the Union Jack or pendant on board such ship or vessell by them fitted out in pursuance of such our commission, in company of any our men of warr, or so near any other men of warr belonging to any nation in amity with us, so as to occasion any salute from them, or in or near any port or road whatsoever.