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It is not often that an obscure treaty from the late 18th century becomes a touch point in a 21st century philosophical debate, but such is the case with the 1796 treaty between the United States and Tripoli.
At issue is not the treaty itself — it exists and is well-documented. What is at issue is Article 11 of that treaty, which says that the United States and Tripoli should never enter into hostilities because of religious differences. Sounds innocent enough, but the phrasing used in the preamble to the Article has made it controversial.
"As the government of the United States of America is not in any sense founded on the Christian Religion," the Article begins. And so, for those who advocate for the complete separation of church and state, the article is seen as an early vindication of the position, especially since the treaty was approved by a Senate that recently approved the Bill of Rights.
Others, more keen on closer ties between the church and state, dismiss the line completely, the result of translation error or paraphrasing, or prefer to see the preamble as a throw-away line, meant to assuage the Dey of Tripoli (also known as the Bey of Tripoli and the Pasha of Tripoli).
Which position is correct? As in many things, there are elements of truth to both sides.
The treaty with Tripoli is just one of many made with the Barbary States around the turn of the century. The basic issue was state-sponsored piracy. For years, the Barbary States had supported piracy, and American shipping had enjoyed the protection of the British Navy. After independence, the British thoughtfully informed the Barbary states that American shipping was no longer under British protection, and American shipping came under attack. In 1785, in fact, the Dey of Algiers declared war on the United States and seized several ships. The Confederation Congress was unable to either raise a navy nor funds to pay tribute which would have allowed American shipping to proceed unhindered.
Actions like this took place over the course of fifty years, with treaties being signed and tributes paid; then tributes went unpaid and war was declared and shipping was threatened. One of the earliest Barbary treaties was between the United States and Morocco in 1786; one of the latest was also between the U.S. and Morocco in 1836.
In 1796, a treaty was negotiated between the United States and Tripoli by Captain Richard O'Brien. Joel Barlow was the U.S. consul general in Algiers, and it is his translation of the Arabic text of the treaty that follows. The treaty was finalized in 1797. The treaty was signed by the Americans on June 10, 1797.
The text reproduced below is what was signed and ratified by the United States. An examination of the Arabic text, however, reveals that Article 11 does not exist in the Arabic text, at least not in the form presented in the English text. In the Arabic version, the text between Articles 10 and 12 is a letter from the Dey of Algiers to the Pasha of Tripoli. State Department review of the translation in 1800 called it "extremely erroneous." An Italian translation of the Arabic done at the same time, as Italian was widely used in Tripoli, is much closer to the original Arabic. The differences in the key provisions of the treaty, however, are not significant.
For the Americans, the terms of the treaty were quickly rendered moot. Citing late payments of tribute, the Pasha of Tripoli, in 1801, declared war on the United States. The United States fought back this time, and sent the Navy and Marines to Tripoli (to the famed "shores of Tripoli"), where the Pasha's forces were defeated. A new treaty, finalized in 1805, included a payment of ransom for U.S. prisoners, but no further payment of tribute.
Sources: Barbary Wars, 1801-1805 and 1815-1816, The United States Department of State. Treaties with The Barbary Powers : 1786-1836, The Avalon Project. Source for the text of the treaty: The Avalon Project. Spelling errors in the text were corrected and some abbrevations were expanded for reproduction here.
Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli of Barbary.
There is a firm and perpetual Peace and friendship between the United States of America and the Bey and subjects of Tripoli of Barbary, made by the free consent of both parties, and guaranteed by the most potent Dey & regency of Algiers.
If any goods belonging to any nation with which either of the parties is at war shall be loaded on board of vessels belonging to the other party they shall pass free, and no attempt shall be made to take or detain them.
If any citizens, subjects or effects belonging to either party shall be found on board a prize vessel taken from an enemy by the other party, such citizens or subjects shall be set at liberty, and the effects restored to the owners.
Proper passports are to be given to all vessels of both parties, by which they are to be known. And, considering the distance between the two countries, eighteen months from the date of this treaty shall be allowed for procuring such passports. During this interval the other papers belonging to such vessels shall be sufficient for their protection.
A citizen or subject of either party having bought a prize vessel condemned by the other party or by any other nation, the certificate of condemnation and bill of sale shall be a sufficient passport for such vessel for one year; this being a reasonable time for her to procure a proper passport.
Vessels of either party putting into the ports of the other and having need of provisions or other supplies, they shall be furnished at the market price. And if any such vessel shall so put in from a disaster at sea and have occasion to repair, she shall be at liberty to land and reembark her cargo without paying any duties. But in no case shall she be compelled to land her cargo.
Should a vessel of either party be cast on the shore of the other, all proper assistance shall be given to her and her people; no pillage shall be allowed; the property shall remain at the disposition of the owners, and the crew protected and succoured till they can be sent to their country.
If a vessel of either party should be attacked by an enemy within gun-shot of the forts of the other she shall be defended as much as possible. If she be in port she shall not be seized or attacked when it is in the power of the other party to protect her. And when she proceeds to sea no enemy shall be allowed to pursue her from the same port within twenty four hours after her departure.
The commerce between the United States and Tripoli, — the protection to be given to merchants, masters of vessels and seamen, — the reciprocal right of establishing consuls in each country, and the privileges, immunities and jurisdictions to be enjoyed by such consuls, are declared to be on the same footing with those of the most favoured nations respectively.
The money and presents demanded by the Bey of Tripoli as a full and satisfactory consideration on his part and on the part of his subjects for this treaty of perpetual peace and friendship are acknowledged to have been received by him previous to his signing the same, according to a receipt which is hereto annexed, except such part as is promised on the part of the United States to be delivered and paid by them on the arrival of their Consul in Tripoli, of which part a note is likewise hereto annexed. And no presence of any periodical tribute or farther payment is ever to be made by either party.
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 Musselmen, — and as the said States never have entered into any war or act of hostility against any Mehomitan 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.
In case of any dispute arising from a notation of any of the articles of this treaty no appeal shall be made to arms, nor shall war be declared on any pretext whatever. But if the consul residing at the place where the dispute shall happen shall not be able to settle the same, an amicable reference shall be made to the mutual friend of the parties, the Dey of Algiers, the parties hereby engaging to abide by his decision. And he by virtue of his signature to this treaty engages for himself and successors to declare the justice of the case according to the true interpretation of the treaty, and to use all the means in his power to enforce the observance of the same.
Signed and sealed at Tripoli of Barbary the 3rd day of Jumad in the year of the Higera 1211 - corresponding with the 4th day of November 1796 by
JUSSUF BASHAW MAHOMET Bey
GALIL Genl of the Troops
AMET Minister of Marine
MAHOMET Coml of the city
ALLY-Chief of the Divan
Signed and sealed at Algiers the 4th day of Argib 1211 - corresponding with the 3rd day of January 1797 by
HASSAN BASHAW Dey
and by the Agent plenipotentiary of the United States of America Joel BARLOW