I have fresh occasion of repeating what I lately mentioned to you about colours worn by the ships belonging to the East India Company different from what the merchant ships of other his Majesty's subjects generally do, and by his Majesty's proclamation of 18th Sept. 1674 ... are bound to use, without any provisional exception made therein on behalf of the said Company; for want thereof, not only his Majesty's commander-in-chief in the Downs but others of his captains and officers are under an obligation of interrupting your ships in the wearing the said colours, and have several of them applied themselves to me at sundry times (and now lately) for direction therein, with answer still given them by me in favour of the Company as knowing their and their predecessors' usage in that matter, and the moment it may be of to them that the same should be continued; but, forasmuch as it cannot be thought fit for me to remain under a constant accountableness for any behaviour of his Majesty's officers different from his pleasure signified by a proclamation, I desire you will please to take an opportunity of mentioning this thing to my honoured friends of your Company, to the end that (in case their service be indeed concerned in the continuance of this their usage) they may take some way of making their desires therein known to his Majesty, that so what he shall think fit to indulge to them upon it may be done by an order pursuant to the said proclamation, and his officers thereby indemnified in their obedience of it[330].
Apparently the matter was adjusted to the satisfaction of Pepys, for the striped flag[331] continued to be used by the Company until the year 1824, when, on the question of its legal position being again raised, its use as an ensign was discontinued, though it remained in existence until 1863 on the Company's ships as a jack or signal flag[332].
The flags laid down for the merchant ships by the Proclamation of 1674 were confirmed by further Proclamations in July, 1694, and December, 1702, with the additional restriction that such ships were expressly forbidden to wear "any kind of pendant whatsoever." As these proclamations were addressed to all "loving subjects" they were presumably binding on the Scots as well as on the English, but the use of the St Andrew canton certainly persisted in the ships of the Scots navy, and therefore presumably in the merchant ships of Scotland.
On the legislative union between England and Scotland in 1707 a further Proclamation was issued, which contained a fundamental difference. In the Proclamation of 1674, 1694, and 1702 the merchant ships had been forbidden to use any other colours than "those usually worn," but they were not expressly ordered to wear any colours at all. In the Proclamation of 1707, under which the Union replaced the St George in the canton of the red ensign, a clause was inserted
strictly charging and commanding the Masters of all Merchant Ships and vessels belonging to any of our subjects, whether employed in Our service or otherwise, and all other persons whom it may concern, to wear the said ensign on board their ships or vessels.
They were further forbidden to wear "any Flags, Jacks, Pendants or Colours made in imitation of ours, or any kind of Pendant whatsoever, or any other ensign than the ensign described." This did not prohibit the use of the St George's jack on the bowsprit, which was expressly recognised by the King's Regulations for the navy[333] as being, together with the red ensign, the appropriate colours for a British merchant ship.
In consequence of the legislative union with Ireland, a proclamation was issued on 1st January, 1801, substituting the new form of the Union in the canton of the ensign, but leaving the existing regulations unaltered. The provision for the use of the St George's jack by merchant ships last appeared in the 1808 edition of the Regulations and Instructions relating to His Majesty's Service at Sea in the following terms:
Merchant Ships are to carry a Red Ensign with the Union Jack in a canton, at the upper corner next the staff, and a White Jack with a Red Cross, commonly called St. George's Cross, passing quite through it.
How far such regulations, which in the preamble are expressly stated to be drawn up for the "Naval Service at Sea," can have been legally binding on the Mercantile Marine is a matter for lawyers to decide, but it seems probable that the merchant service did not generally observe the regulation as to the jack, for in the next edition (that of 1824) all reference to it is omitted. From that date the red ensign alone has been the legal national colours of a British merchant vessel. It must be displayed
(a) On a signal being made from one of H.M. ships or from a vessel under the command of an officer of the Royal Navy on full pay.