Art. 4.-THE BOARD OF ADMIRALTY.

1. Naval Administration. By Admiral Sir R. Vesey Hamilton. London: Bell, 1896.

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2. Encyclopaedia Britannica. Eleventh Edition. Vol. I, Art. Admiralty Administration.' Cambridge: University Press, 1910.

3. The Times Book of the Navy. London: Published by 'The Times,' 1914.

PART I.-THE POSITION OF THE FIRST LORD.

As an organ of administration, the Board of Admiralty is quite unique; and, since its constitution, powers, functions and responsibilities appear to be very imperfectly understood, it is worth while to examine them in some detail. The Board consists of a certain number-the number has varied from time to time-of Commissioners. These Commissioners are officially styled The Lords Commissioners for executing the office of Lord High Admiral,' or more briefly 'My Lords Commissioners of The Admiralty'; and they derive their authority to act in that capacity from a Patent issued by the Crown as often as a new Board of Admiralty is constituted. The terms of this Patent have, with certain exceptions to be presently mentioned, remained substantially unchanged since it was first issued by Queen Anne in 1709, on the death of her husband Prince George of Denmark, who had held the office of Lord High Admiral. From that time forward the office has been in commission except for a few months in 1827, when it was revived by Canning in favour of the Duke of Clarence, afterwards King William IV.

But the Patent of Queen Anne was not even in those days the sole source of the authority exercised by the Board. Her Board was not the first Board of Admiralty. The office of Lord High Admiral had been in abeyance more than once in earlier days; and, in particular, it was in abeyance-its powers being exercised by a Board-when the Battle of Beachy Head was fought on June 30, 1690. Arthur Herbert, Earl of Torrington, was held to have misconducted himself in that battle, and it was proposed to bring him to a Court Martial.

But it was objected that the Board of Admiralty could not order a Court Martial involving issues of life and death, inasmuch as that power had by a Statute of Charles II been reserved for a Lord High Admiral alone. To get over this difficulty a declaratory Act was passed, reciting that all powers lawfully vested in the Lord High Admiral by Act of Parliament or otherwise' did and should appertain to the Commissioners 'to all intents and purposes as if the said Commissioners were Lord High Admiral of England.' That Statute is still in force, but it was not passed without strong opposition; and it is worthy of note that in a protest recorded by seventeen members of the House of Lords one of the objections taken was that

'the judges having unanimously declared that the law marine was nowhere particularised in their books, whereby the power and jurisdiction of the Lord High Admiral may be ascertained, so that the practice is all that we know of it, we conceive it unprecedented and of dangerous consequence, that the jurisdiction exercised by the Lord High Admiral should, by a law, be declared to be in the Commissioners of the Admiralty, whereby an unknown and therefore unlimited power may be established in them.'

It is manifest from this that neither the Patent granted by Queen Anne nor any of its successors down to the present day could in any way restrict the powers vested in the Board by the Statute of William and Mary; and those powers were expressly declared by the judges in 1690 to be nowhere particularised in their books,' and by the protesting Peers to be 'unknown and therefore unlimited.' As a matter of fact the Patent was framed in exact accordance with the Statute:

'Granting to any three 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 of Our High Admiral.'

The only substantial change which has been made in the Patent since it was first issued by Queen Annethere are other verbal and textual changes of no great moment is that, wherever the words 'any three or

more of you' occur in the original Patent, they now read 'any two or more of you.' The authority for this change is to be found in an Act of Parliament, 2 Will. IV, cap. 40, passed to give effect to the many reforms initiated by Sir James Graham, who was First Lord of the Admiralty in the Ministry of Lord Grey.

But the Patent of Queen Anne, together with all its successors, did manifestly effect, or at least intend to effect, one very material change. By putting the office of Lord High Admiral in Commission it substituted the authority of a Board for that of a single individual. Whatever the Lord High Admiral could do by virtue of his unknown and therefore unlimited' powers-whether statutory, prescriptive, customary, or what not-that also the Board of Admiralty could do, acting as a Board through any three or more of its members, and since 1832 through any two or more of them. There are of course many acts of administration which do not require the authority of the Board for their execution, and probably those which do require such authority have never been more than a very small proportion of the whole; but such acts as require the authority of the Board can, according to the Patent, only be done by two or more of the Lords Commissioners sitting and acting as a Board. In other words, a literal interpretation of the Patent, and-so far as the plain sense of the words can be taken to indicate intention-the intention of the Patent, must be held to imply that the Lords Commissioners are co-equal and co-ordinate, the First Lord or President of the Board being invested with no more authority than any of his colleagues, except in so far as he speaks and acts with the authority and at the bidding of the Cabinet, which is of course, in modern times, supreme in the last resort. According to this view the First Lord is primus inter pares and nothing more. If the terms of the Patent are to be strictly observed, the First Lord can issue no executive orders except with the concurrence of his colleagues or at least of one of them. Such orders were in former times signed by three Lords at least and countersigned by the Secretary. Nowadays they are signed by the Secretary, endorsed By order of My Lords Commissioners of the Admiralty,' and stamped with the seal of the Board.

Such is in ordinary circumstances the procedure as prescribed by the Patent and sanctioned by long usage. But in extraordinary circumstances it is certain that the business of the Admiralty has not for many generations been conducted in strict accord with the terms of the Patent; and that the powers, prerogatives and initiative of the First Lord have never been confined within the limits which would circumscribe them if he were, as the Patent manifestly made him, no more than primus inter pares in relation to his colleagues. It is in truth not the Patent which really regulates the business of the Admiralty, but a body of usage, more or less flexible and variable in character, and never reduced to precise definition in writing, which has come down from time immemorial. According to this ancient usage there has always been inherent in the First Lord an elastic power which enables him to undertake any duties which the public welfare may require. In other words, although in all ordinary circumstances the First Lord acts only in concert and after consultation with the Board, yet in extraordinary circumstances of grave emergency the First Lord is supreme and may concentrate in his sole person all the powers of the Board, which powers are, in the words of the Peers' protest of 1690, 'unknown and therefore unlimited.'

This was clearly established once for all by the evidence given before a Select Committee of the House of Commons in 1861. Sir James Graham, who had been First Lord from 1830 to 1834 and again, during the Crimean War, from 1853 to 1855, said in evidence before this Committee: 'The more I have investigated the matter, 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.' Asked if he would recommend any change in the Board of Admiralty, Sir James Graham replied:

'If the supremacy of the First Lord be admitted and be not contradicted, I think it is right now. If, in consequence of all these inquiries and commissions, the strict terms of the patent of equality be insisted upon and the supreme power of the First Lord be shaken or negatived, I think the system

is brought to an end and must be changed. On the other hand, if the supreme power of the First Lord, as it has been exercised for centuries, be maintained inviolate, I think it can work well as it is.'

In another answer Sir James Graham said, 'I carry it so high as this, that the First Lord must be supreme; and, being supreme, all are subordinate and co-ordinate under him.' The same experienced Minister had previously said in evidence given before a Committee on the Dockyards, 'The Admiralty can only work by the First Lord exercising power to such an extent as really to render the Board subservient to his will.'

Sir Charles Wood, afterwards Lord Halifax, who succeeded Sir James Graham as First Lord in 1855 and held that office until 1858, having previously served as Parliamentary Secretary of the Admiralty from 1835 to 1839, frankly avowed that he had never dreamt of reading the Patent:

'I found the practice established,' he said, 'when I was Secretary, and I have acted upon it since, without ever, I must fairly say, looking at the Patent. I should very much doubt whether any officer, First Lord of the Admiralty, Secretary of the Admiralty, or anybody else ever read the Patent by which he was appointed. . . . I have been guided entirely by the prescriptive usage, which is a sort of tradition in every office.'

Asked whether he concurred in the opinion quoted above as given by Sir James Graham before the Dockyard Committee, Sir Charles Wood first replied that such a case 'ought never to arise with a proper administration of the Admiralty by any First Lord,' and added that he had never contemplated any such occurrence. But on being further pressed he said, 'In extreme cases extreme remedies must be applied; and, if the Junior Lords oppose the opinion of the First Lord upon serious matters, the Board must be changed.' In his evidence before the same Committee of 1861 Sir John Pakington, who had been First Lord of the Admiralty from 1858 to 1859, gave a detailed account of two instances, in one of which he had overruled his professional colleagues-not, however, without the approval of the Cabinet and the sanction of the Queen--while in the other he had intended