The Barbary Treaties 1786-1816 - Treaty with Tripoli 1796 : Hunter Miller's Notes

The Barbary Treaties 1786-1816

Treaty with Tripoli 1796 : Hunter Miller's Notes

The two dates and places given for the signature of the treaty (Tripoli, November 4, 1796, and Algiers, January 3, 1797) are explained by the fact that the provisions of the agreement with the Pasha of Tripoli were deemed to be to some extent at least under the protection or guaranty of the Dey of Algiers and made with his approval. So after the completion of the negotiations at Tripoli by Capt. Richard O'Brien, the agreement was taken to Algiers for the signature and seal of the Dey of Algiers; and consequently the various signatures and certificates of Joel Barlow, Consul General at Algiers, which are hereafter mentioned, became a part of the record.

There are four documents in the Department of State file of this treaty.

### THE ORIGINAL TREATY

The first to be noted is that which contains the original treaty. It is a book in the literal sense. There are fourteen pages of Arabic text; all of these are right-hand pages. In the Arabic order, the first of them is the "note" of the money and presents, mentioned, according to the Barlow translation, in Article 10 of the treaty; the second is the "receipt," also mentioned in that article, and this page, like the first, is sealed with the seal of the Dey of Algiers. Then come the twelve pages of the treaty; the preamble is on the first of these with Article 1; and there is one article on a page, except that the script on the page between Articles 10 and 12, is, as fully explained in the annotated translation of 1930, not an article at all.

In the original treaty book, on the corresponding fourteen left-hand pages, each signed or initialed by Joel Barlow, Consul General at Algiers, is a purported English translation of the Arabic of the respective pages opposite.

It is the Barlow translation which is here printed following the Arabic text and in the same order, first the twelve articles of the treaty, then the "receipt" and the "note," after which is the approval of Col. David Humphreys, then Minister at Lisbon, dated February 10, 1797; as written in the original document.

The Barlow translation of the treaty proper is that which has been printed in all official and unofficial treaty collections ever since it appeared in the Session Laws of the first session of the Fifth Congress, in 1797, and in The Laws of the United States, Folwell ea., IV, 44-8, printed in 1799; but in those treaty collections, as, for example, in 8 Statutes at Large, 154-56, the "receipt" and the "note" (there called "notice") are omitted; and the first source of the texts of those collections was clearly a now missing copy, as is shown by the fact that they include a certification of the text as a copy; that certification is signed by Joel Barlow under date of January 4, 1797, and it is neither in the original document nor in the Cathcart copy, which is particularly described below.

### THE CATHCART COPY

The second document in the Department of State file to be noted is a very similar book, containing a copy of the treaty certified by the Dey of Algiers and also by Barlow; this latter book may be called the Cathcart copy. Something should be said about James Leander Cathcart and the book itself, before noting the differences between the Cathcart copy and the original treaty book.

Cathcart was born in Scotland on June 1, 1767; he had been a midshipman on the frigate Confederacy of the Continental forces; while a seaman on the schooner Maria from Boston he had been taken prisoner by the Algerines in 1785. He became chief Christian clerk to the Dey of Algiers and returned to the United States during the negotiations with Algiers in 1796. Cathcart was commissioned Consul at Tripoli on July 10, 1797; but his instructions were not written until December 20, 1798, his letter of credence being dated the next day; and he did not reach Tripoli as Consul until April 5, 1799.

The differences between the Cathcart copy and the original treaty book will now be noted.

The fourteen pages of the Arabic in the original are (with absolutely insignificant differences) the same in the Cathcart copy, except that the copy lacks all the seals and superscriptions of the original, and except that the copy has on four of its pages, under the Arabic, a seal of red wax impressed with the monogram "JLC," the seal of Cathcart. The English written opposite the fourteen pages of the Arabic in the copy and signed or initialed, as in the original, by Joel Barlow on each page, is in substance in the copy the same as in the original. There are some variances, but none of them is very material.

On the next page of the English of the copy, which is a translation of the receipt for the money and presents, someone (perhaps Cathcart) has added three words (here italicized) to the transcription of the signature by Barlow, so that it reads, "Jussuf Bashaw-Bey- whom God exalt Upon a Gibbet."

There are, however, in the Cathcart copy three written pages which are not in the original treaty book; and those three pages follow, or, as would be said here, precede directly the above-mentioned fourteen pages.

The first of the three is in Arabic under the seal of Hassan Pasha, Dey of Algiers; it is in the nature of a certificate, dated January 3, 1797; Doctor Snouck Hurgronje writes that "the text is drawn up in a very bad style" and gives this translation thereof.

### THE ITALIAN TRANSLATION

The third document in the Department of State file to be noted, is a translation of the treaty into Italian, a language then much in use in Tripoli. The translation covers not only the twelve articles of the treaty proper, but the receipt and note as well; and also the two Arabic pages of the Cathcart copy which are not in the original treaty book; so the translator had before him the Cathcart copy.

This translation was not made by Cathcart; it is not in his writing; he would naturally have written in English; and further it appears from his journal of the Tripoli negotiations of 1799 that he did not read Arabic, although he seems to have been familiar with Turkish and Italian. But that the translation was made for him and under his direction is clear, for on the cover page is written, over his full signature:

Literal translation of the Treaty between the United States of America &: the Regency of Tripoli in Barbary-the translation in English sign'd by Joel Barlow EsqT on the 26th of November 1796 being extremely erroneous.

Undoubtedly this refers to the Barlow translation in the certified copy which Cathcart had, here called the Cathcart copy, which, as above set forth, is now in the Department of State file. (The Barlow translation in the original treaty book is almost identical.) The date given for the Barlow translation, November 26, 1796, is approximately, and may even be quite, correct; for strictly speaking, that translation is not, as a translation, dated at all.

### THE UNITED STATES RATIFICATION AND PROCLAMATION

The fourth document in the Department of State file, and the last to be noted, is at once the United States instrument of ratification and the proclamation, dated June 10, 1797.

In its combination of what are ordinarily two separate papers, that document is of unusual form. It is under the Great Seal and is signed by Adams and attested by Pickering as Secretary of State; but before the testimonium clause is this paragraph of ratification and proclamation:

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 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 others citizens or inhabitants thereof, faithfully to observe and fulfil the said Treaty and every clause and article thereof.

The text embodied in the paper after the words, "which Treaty written in the Arabic Language, being translated into the Language of the United States, is in the words following to wit," is almost exactly the same as that in the Statutes at Large, which was perhaps copied from the instrument now described. Accordingly the provisions of the twelve articles appear in the document as written by Barlow in English in the original treaty book; so do the signatory names, although the copyist of them made a slip or two.

Thus the proclamation was immediate with the ratification and did not await any such formality as notice to the Bey of Tripoli of the ratification of the treaty by the United States. The treaty, like the treaty with the Dey of Algiers of 1795 (Document 17), had been bought; and, as much of the purchase price had already been paid, any subsequent item of procedure was doubtless considered to be of comparatively little importance.

### NOTE REGARDING THE ARABIC TEXT

The original here reproduced consists of the fourteen Arabic pages of the original treaty book heretofore described. The two Arabic pages of the certified or Cathcart copy, to which reference has been made in these notes, are not, as such, reproduced.

### NOTE REGARDING THE Barlow TRANSLATION

The translation first printed is that of Barlow as written in the original treaty book, including not only the twelve articles of the treaty proper, but also the receipt and the note mentioned, according to the Barlow translation, in Article 10. The signature of Barlow is copied as it occurs, but not his initials, which are on every page of the fourteen which is not signed. The Humphreys approval or confirmation follows the translation; but the other writings, in English and Spanish, in the original treaty book, are not printed with the translation but only in these notes.

It is to be remembered that the Barlow translation is that which was submitted to the Senate (American State Papers, Foreign Relations, II, 18-19) and which is printed in the Statutes at Large and in treaty collections generally; it is that English text which in the United States has always been deemed the text of the treaty.

As even a casual examination of the annotated translation of 1930 shows, the Barlow translation is at best a poor attempt at a paraphrase or summary of the sense of the Arabic; and even as such its defects throughout are obvious and glaring. Most extraordinary (and wholly unexplained) is the fact that Article 11 of the Barlow translation, with its famous phrase, "the government of the United States of America is not in any sense founded on the Christian Religion," does not exist at all. There is no Article 11. 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

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. Its text was not only formally proclaimed as such but has been continuously printed and reprinted as such; and 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; for in the handwriting of James Leander Cathcart is the statement quoted above that the Barlow translation is "extremely erroneous"; and while the Italian translation of the Arabic text on which that endorsement appears, presents its own linguistic difficulties, largely owing to its literal rendering and its consequent non-literary character as Italian, it is none the less in essence a reasonable equivalent of the Arabic. Indeed, allowing for the crudeness of the original Arabic and the changes which always result from a retranslation, it may be said that a rendering of the Italian translation into English gives a result which is in general not dissimilar from the English translation of Doctor Snouck Hurgronje of 1930; and of course the most cursory examination of the Italian translation would show (assuming the Italian to be even an approximation of the Arabic), that the Barlow translation, as Cathcart wrote, was "extremely erroneous"; but nothing indicating that the Italian translation was even consulted has been found, and it does not appear that it was ever before 1930 put into English.

### NOTE REGARDING RATIFICATION

From the point of view of the rulers of Tripoli, the validity and effective character of the treaty depended on the receipt of those things promised in the "note," which were to be delivered "on the arrival of an American Consul Tripoli." What had been delivered on the negotiation of the treaty as set forth in O'Brien's account, was merely a part of an uncompleted whole.

When Cathcart, as the American Consul, arrived at Tripoli on April 5, 1799, the stores agreed to be deliverer!, and at least part of which had been shipped, had not arrived. They were thought to have been lost or captured. Cathcart was quite willing to agree upon a money equivalent; but he was met with an added demand of the Pasha of Tripoli for a brig alleged to have been promised by O'Brien at the time of the signing of the treaty. The negotiations following, during the course of which the Pasha of Tripoli declared that he did not consider himself obliged to fulfil the treaty, were very lively; but with the help of Dr. Bryan McDonogh, whom the Pasha wrote of as "our Doctor," the whole matter was finally adjusted for $18,000 on April 10, 1799.

A letter from the Pasha of Tripoli to President Adams of April 15, 1799 (translation from the Italian in D. S., 1 (consular Despatches, Tunis), concludes thus:

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.

Source: Treaties and Other International Acts of the United States of America. Edited by Hunter Miller. Volume 2. Documents 1-40 : 1776-1818. Washington : Government Printing Office, 1931.