In this view, it is evident, that the fifth article neither enlarges nor abridges the stipulations of the third and fourth. The effect of the treaty would have been precisely the same, had it been omitted altogether; consequently, it may be truly said that the reservation by the United States, in this article, is completely useless. And it may be added with equal truth, that the equivalent reservation by France is completely useless, as well as her previous abandonment of the same duty: and in short, the whole article. Each party then remains free to raise or lower its tonnage, provided the change operates on all nations, even the most favored.
Without undertaking to affirm, we may obviously conjecture, that this article has been inserted on the part of the United States, from an over caution to guard, _nommément_, by name, against a particular aggrievance, which they thought could never be too well secured against: and that has happened, which generally happens; doubts have been produced by the too great number of words used to prevent doubt.
II. The court of France, however, understands this article as intended to introduce something to which the preceding articles had not reached, and not merely as an application of them to a particular case. Their opinion seems to be founded on the general rule in the construction of instruments, to leave no words merely useless, for which any rational meaning can be found. They say, that the reservation by the United States of a right to lay a duty equivalent to that of the one hundred sols, reserved by France, would have been completely useless, if they were left free by the preceding articles, to lay a tonnage to any extent whatever; consequently, that the reservation of a part proves a relinquishment of the residue.
If some meaning, and such a one, is to be given to the last member of the article, some meaning, and a similar one, must be given to the corresponding member. If the reservation by the United States of a right to lay an equivalent duty, implies a relinquishment of their right to lay any other, the reservation by France of a right to continue the specified duty, to which it is an equivalent, must imply a relinquishment of the right on her part, to lay or continue any other. Equivalent reservations by both, must imply equivalent restrictions on both. The exact reciprocity stipulated in the preceding articles, and which pervades every part of the treaty, ensures a counter right to each party for every right ceded to the other.