Soon after the formation of the United States, privateering in the Mediterranean Sea and Atlantic Ocean from the nations of the Barbary Coast prompted the U.S. to form a series of so-called "peace treaties", collectively known as the Barbary Treaties. Individual treaties were negotiated with Morocco (1786), Algeria (1795), Tripoli (1797) and Tunis (1797), all of them more than once.
The United States consul-general to the Barbary states of Algiers, Tripoli and Tunis was Joel Barlow, who dealt with the text of various treaties (including the Treaty of Tripoli) and supported U.S. diplomatic efforts in the Barbary Coast. Commissioner Plenipotentiary of the United States, David Humphreys, was given the right to establish a treaty with Tripoli and assigned Joel Barlow and Joseph Donaldson to broker it. It was Joel Barlow who certified the signatures on the Arabic original and the English copy provided to him. Later, Captain Richard O'Brien established the original transport of the negotiated goods along with the Treaty, but it was the American Consul James Leander Cathcart who delivered the final requirements of payment for the treaty. The treaty was broken in 1801 by the Pasha of Tripoli over President Thomas Jefferson's refusal to pay the Pasha's demands for increased payments. The Treaty was renegotiated in 1805 after the First Barbary War.
The first treaty is cited as historical evidence in the contemporary controversy over whether there was religious intent by the founders of the United States government. Article 11 of the first treaty has been interpreted as an official denial of a Christian basis for the U.S. government.
Colonial America had come under attack as early as 1628. Attacks continued into the 18th century, until advances in European (especially British) military power began to limit the reach of the Barbary nations. Before the American Revolution, the British colonies in North America were protected from the Barbary pirates by British warships and treaties. During the Revolution, monarchical France formed an alliance with the colonies and assumed the responsibility of providing protection of U.S. ships against the Barbary pirates. After the U.S. won its independence with the signing of the Treaty of Paris (1783), it had to face the threat of the Barbary pirates on its own. Two American ships were captured by Algerian pirates in July 1785 and the survivors forced into slavery, their ransom set at $60,000. A rumor that Benjamin Franklin, who was en route from France to Philadelphia about that time, had been captured by Barbary pirates, caused considerable upset in the U.S. Without a standing navy, much less a navy capable of projecting force across an ocean, the U.S. was forced to pay tribute monies and goods to the Barbary nations for the security of its ships and the freedom of its captured citizens. As General William Eaton informed newly-appointed Secretary of State John Marshall in 1800, "It is a maxim of the Barbary States, that 'The Christians who would be on good terms with them must fight well or pay well.'
In the course of negotiating with the Barbary nations, each of the Barbary rulers continuously demanded increased payments to maintain peace, even while occasionally capturing U.S. ships. The Pasha of Tripoli was jealous of the ships the U.S. had recently given to Algeria, and demanded similar payment be made to him. On September 25, 1800, Tripoli captured the U.S. ship, Catherine, robbed the crew and plundered its cargo. The Pasha said this was a mistake and the captain responsible for the capture had been punished. Even so, the Pasha warned Cathcart that either the U.S. send additional payments, or the Pasha would declare war on U.S. vessels within six months.
The Pasha then commenced thus: "Counsul there is no Nation I wish more to be at Peace with than yours, but all Nations pay me & so must the Americans." I answered "we have already paid you all we owe you & are nothing in arrears." He answered that for the Peace we had paid him it was true, but to maintain the Peace we had given him nothing. I observed that the terms of our Treaty were to pay him the stipulated stores [and the] cash and in full of all demands forever.... The Pasha then observed that we had given a great deal to Algiers and Tunis.... he hoped the United States would neglect him as six or eight vessels of the value of his would amount to a much larger sum than ever he expected to get from the United States for remaining at Peace.
Meanwhile, the U.S. was quickly losing patience with the Barbary nations, and had been building up its Navy in preparation for armed confrontation. On May 15, 1801, President Thomas Jefferson's cabinet again advised him to send a squadron to the Mediterranean, but only as a retaliatory force. On May 20, 1801, Commodore Richard Dale was commissioned to lead three frigates and a schooner to patrol the Mediterranean sea lanes. They set sail on June 2, 1801. However, unknown to Jefferson, the Pasha of Tripoli declared war against the United States on May 10, 1801. In sending the Navy squadron to the Mediterranean, Jefferson declared,
"To this state of general peace with which we have been blessed, one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war, on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean."
Soon after Commodore Dale sailed into a neutral British port near the Straits of Gibraltar, he discovered that Tripoli had declared war on the U.S. Dale’s commission only authorized him to blockade adversarial ports and capture hostile ships, so he could not attack Tripoli directly. However, he notified the Pasha of Tripoli that he could negotiate terms of surrender.
Through subsequent battles, Tripoli eventually agreed to terms of peace with the United States. Tobias Lear negotiated a second "Treaty of Peace and Amity" with the Pasha Yusuf on June 4, 1805. To the dismay of many Americans, the new settlement included a ransom of $60,000 paid for the release of prisoners from the USS Philadelphia and several U.S. merchant ships. By 1807, Algiers had gone back to taking U.S. ships and seamen hostage. Distracted by the preludes to the War of 1812, the United States was unable to respond to the provocations until 1815, with the Second Barbary War, thereby concluding the encompassing Tripolitan Wars (1800-1815).
The official treaty was in Arabic text, and a translated version by Consul-General Barlow was ratified by the United States on June 10, 1797. Article 11 of the treaty was said to have not been part of the original Arabic version of the treaty; in its place is a letter from the Dey of Algiers to the Pasha of Tripoli. However, it is the English text which was ratified by Congress.
The Treaty also had spent 7 months traveling from Tripoli to Algiers to Portugal and, finally, to the United States, and had been signed by officials at each stop along the way. Neither Congress nor President Adams would have been able to cancel the terms of the Treaty by the time they first saw it, and there is no record of discussion or debate of the Treaty of Tripoli at the time that it was ratified. However, there is a statement made by President Adams on the document that reads:
Now be it known, That I John Adams, President of the United States of America, having seen and considered the said Treaty do, by and with the advice and consent of the Senate, accept, ratify, and confirm the same, and every clause and article thereof. And to the End that the said Treaty may be observed, and performed with good Faith on the part of the United States, I have ordered the premises to be made public; And I do hereby enjoin and require all persons bearing office civil or military within the United States, and all other citizens or inhabitants thereof, faithfully to observe and fulfill the said Treaty and every clause and article thereof.
Official records show that after President John Adams sent the treaty to the Senate for ratification in May 1797, the entire treaty was read aloud on the Senate floor, and copies were printed for every Senator. A committee considered the treaty and recommended ratification, 23 of the 32 sitting Senators were present for the June 7 vote which unanimously approved the ratification recommendation.
However, before anyone in the United States saw the Treaty, its required payments, in the form of goods and money, had been made in part. As Barlow declared: "The present writing done by our hand and delivered to the American Captain OBrien makes known that he has delivered to us forty thousand Spanish dollars,-thirteen watches of gold, silver & pinsbach,-five rings, of which three of diamonds, one of saphire and one with a watch in it, One hundred & forty piques of cloth, and four caftans of brocade,-and these on account of the peace concluded with the Americans." However, this was an incomplete amount of goods stipulated under the treaty (according to the Pasha of Tripoli) and an additional $18,000 dollars had to be paid by the American Consul James Leander Cathcart at his arrival on April 10, 1799.
It was not until these final goods were delivered that the Pasha of Tripoli recognized the Treaty as official. As Hunter Miller describes, "While the original ratification remained in the hands of Cathcart... it is possible that a copy thereof was delivered upon the settlement of April 10, 1799, and further possible that there was something almost in the nature of an exchange of ratifications of the treaty on or about April 10, 1799, the day of the agreed settlement." It is then that the Pasha declares in a Letter to John Adams on April 15, 1799, "Whereby we have consummated the Peace which shall, on our side, be inviolate, provided You are Willing to treat us as You do other Regencies, without any difference being made between Us. Which is the whole of what We have, at present, to say to You, wishing you at the same time the most unlimited prosperity."
Article 11 reads:
Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
Advocates of the separation of church and state claim that this text constitutes evidence that the United States was not founded on Christian principles. The Senate's ratification was only the third recorded unanimous vote of 339 taken. The treaty was printed in the Philadelphia Gazette and two New York papers, with no evidence of any public dissent.
Advocates of the Christian foundation of the government point to the fact that the purpose of the treaty was not to govern the relationship between church and state, but to deal with issues of piracy. One therefore cannot presume that everyone or anyone who voted to ratify this treaty agreed with the language of Article 11, which was arguably collateral to the treaty's purpose.
The translation of the Treaty of Tripoli by Barlow has been found faulty, and there is doubt whether Article 11 corresponds to anything of the same purport in the Arabic version.
In 1931 Hunter Miller completed a commission by the United States government to analyze United States's treaties and to explain how they function and what they mean in terms of the United States's legal position in relationship with the rest of the world. According to Hunter Miller's notes, "the Barlow translation is at best a poor attempt at a paraphrase or summary of the sense of the Arabic" and "Article 11... does not exist at all."
After comparing the United States's version by Barlow with the Arabic and even the Italian version, Miller continues by claiming that:
The Arabic text which is between Articles 10 and 12 is in form a letter, crude and flamboyant and withal quite unimportant, from the Dey of Algiers to the Pasha of Tripoli. How that script came to be written and to be regarded, as in the Barlow translation, as Article 11 of the treaty as there written, is a mystery and seemingly must remain so. Nothing in the diplomatic correspondence of the time throws any light whatever on the point.
From this, Miller concludes: "A further and perhaps equal mystery is the fact that since 1797 the Barlow translation has been trustfully and universally accepted as the just equivalent of the Arabic... yet evidence of the erroneous character of the Barlow translation has been in the archives of the Department of State since perhaps 1800 or thereabouts..."
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