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§ 84bis.

140

under discussion. The Déclaration of London Order No. 2 had announced that the Crown would observe certain Articles of the Déclaration of London, of which that now material was Article 35. No doubt that was a concession to neutral interest, and the appellants' transaction would fall within the terms of the Article. . ;

The Order in Councü of March 30, 1916, after recitmg that doubts have arisen as to the Déclaration of London Order No. 2, says in Article 1 the provisions of the Déclaration of London Order m Councü No. 2, Ï914, shall not be deemed to limit nor to have limited in any way the right of His Majesty to capture goods on the ground that they are conditional contraband, nor to affect or to have affected the liabihty of conditional contraband" to be captured under circumstances such as those of the present case ; in other words, that for the future His Majesty no longer assents to any limitation of his full belligerent rights m the matter in question, the terms of the Déclaration of London Order No. 2 notwithstanding. In what respect are these words wanting m clearness, and how do they faü short of an unambiguous withdrawal of prior waiver of the Crown's rights as affecting certain neutral shipments? They are more than a mere warning that the Crown can, by revocation of prior waivers, return to the exercise of its full belligerent rights unimpaired, nor was there any occasion for such a déclaration. Attention is first drawn to the words „shall not be deemed. . . . to have limited" those rights As these words refer to the past, and to the consequences of transactions which have already occurred, they are clearly severable from the other words of the sentence, which refer to the future. Even if they are ineffectual, for an Order in Councü cannot give to a prior Order any other vahdity or effect than that which its terms, truly construed. possessed accordmg to law, they do not diminish the fuU effect of the other words as to matters within the undoubted compêtence of His Majesty in Councü, nor do they cloud or obscure their meaning. Their Lordships think it needless and inexpedient to surmise with what object these words relating to past occurrences were inserted. The formula now so common, which declares something to be deemed to have been what it really was not, is sometimes no doubt convenient, but the limits ofits ütility are soon reached, and they may have been exceeded here. This their Lordships have not to consider. It is enough that the obscunty of the words in the past tense, such as it is, does not touch those mthe future.

The next point is that the Order of March 30, 1916, itself in Article 2 virtuallv makes a reference to Article 35 of the Déclaration of London as modüied by Article 1 (m) of the Order of October 29, 1914. which is only consistent with the continuance of that Article in force .. rheir Lordships can only observe that, the question being one of clearness or ambiguity, the clearness is on the side of Article 1 of the Order of March 30, 1916, and that Article 2 is not clear enough to preserve what the

words used de futuro in Article 1 have clearly renounced m

The last contention is that the express revocation of the Déclaration of London Order No. 2 in terms and in toto by the Maritime Rights Order

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