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Posted on 11/09/2006 1:19:15 PM PST by nosofar
The Avalon Project at Yale Law School The Barbary Treaties : 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. The last of those twelve pages has also the seals and superscriptions, of which there are eleven In all, including one for the Dey of Algiers. The fourteen pages of Arabic text are reproduced above in left-to-right order of pagination; but the twelve treaty pages come first and then the "receipt" and then the "note."
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.
Returning to the original document and still observing the reverse or Arabic order, the next page has written on it a certificate in Spanish regarding the signatures and seals, which reads as follows:
Nos Do Gerardo Joseph de Sousa Caballero Profeso en la orden de Christo, Consul General y Eneargado de Negocios por Su Magestad Catholica en esta Cindad y Reyno de tripoly de Berberia.
Certificamos que las antecedences firmas y sellos son los verdaderos de los Sugetos que firman todos los Documentos de Paz que se bacon con las Naciones Christianas y son:-
Issuf Baxa: Mohamet Bey: Mamet Keya: Amet Rais de Marina: Amet Gamadar: Aly Haga del Divan: Soliman Maya: Galil Bachi Aga: Mohamet Chegue de la Cindad: Mamet Cocha: y por fe de la verdad lo firmo de mi propia mano, sellado del Real sello de este Consulado de Espana, en tripoly de Berberia a los quatro dies del mes de Noviembre de Mil siete Cientos noventa y seis.
[Seal] GERARDO JOSEPH DE SOUZA
Affixed to the same page is the following translation of that Spanish certificate:
We Don Gerardo Joseph de Souza Knight of the order of Christ, Consul General and Charge des Affaires of his Catholic Majesty in this City and Kingdom of Tripoli of Barbary.
Certify That the foregoing signatures and seals are those of the persons who sign all treaties of peace which are concluded with Christian Nations. They are
Jussuf Bashaw Mahomet Bey
Mamet Treasurer Amet Minister of Marine Amet Chamberlain Ally Chief of the Divan Soliman Kaya Galil General of the Troops Mohamet Com'.of the City Mamet Secy
In faith of which I sign these presents with my own hand. Sealed with the royal seal of this Consulate of Spain, in Tripoli of Barbary on the 4th of November 1796
(L. S.) signed GERARDO JOSEPH DE SOUZA
On the next (preceding) page of the original treaty book is the following certificate regarding the signature and seal of the Dey of Algiers:
I Joel Barlow, agent and consul general of the United States of America for the city and Kingdom of Algiers, certify and attest that the seal standing uppermost on the page next but two preceding this [in the Arabic order] is that of the Regency of Algiers and that the signature above it is that of Hassan Bashaw Dey.
In testimony whereof I sign these presents with my hand and affix thereto the seal of the consulate of the United States at Algiers this 4th day of January 1797. [Seal] JOEL BARLOW
To that same page of the book is affixed a sheet of note paper; the first portion of the writing thereon by Capt. Richard O'Brien, who had negotiated the treaty at Tripoli and who had previously for some years been a prisoner in Algiers, reads thus:
Recapitulation of the Terms of Peace of the United States of America with the Bashaw of Tripolia november the 4th 1796. Concluded.
For the Peace and the Redemption of 4 Captives 40000 Given to the Bashaw as presents agreeable to the list amounting to 3486. To be given for the Peace and Consolary presents 12000. For the Services of al Signior Farfaro 2000. For the Ries of the Marine 1000. Requisite with the Consul, 200 piques of Cloth.
Remarkd and Certifyed by me. RICHd OBRIEN in Tripolia november the 4th 1796.
Following this on the same affixed sheet, is this certificate in Spanish:
Do Gerardo Josef de Sousa, Cavro profeso en la Orn. de Christo, Consul Gral. y Encargado de negocios de S. M. C. serca del Baxa de Tripoly de Berberia.
Certefico que la Cuenta que antecede formada y accinada por el Capitan Ricardo Obrien individuo Americana, y Acomisinado en esta Capital pa la confirmasion de Paz entresu Nacion, y esta Regencia; Is siesta, verdadera, y conforme su distribution a los particu]ares que express: en los que intervine, a instancias del mencionado Obrien. En fee de lo qual sele da el preste sellado Con el R'sello de este Consulado, y firmado de mi propia mano: en Tripoly de Berbera a quatro de Novre de mil setecientos noventa y seis.
[seal] GERARDO JOSEPH DE SOUZA
Also affixed to the same page of the treaty book is the following translation of the foregoing certificate:
We Don Gerardo Josef de Souza Knight of the Order of Christ, Consul General and Charg6 des Affaires of his Catholic Majesty near the Bey of Tripoli of Barbary
Certify that the foregoing account, formed and entered into by Captain Richard OBrien, an American Citizen, and Commissioner in this Capital for concluding peace between his Nation and this Regency, is accurate, true and conformable to the distribution to the individuals therein mentioned: to which I was a witness at the request of the said OBrien.
In faith whereof I have sealed these presents with the royal Seal of this Consulate, and signed the same with my hand in Tripoly of Barbary the 4th of November 1796.
(L. S.) GERARDO JOSEPH DE SOUZA
On the next two (preceding) pages of the original treaty book appears the approval of Col. David Humphreys, then Minister to Portugal, dated at Lisbon February 10, 1797.
It is to be added that most of the pages of the original treaty book are quite stained.
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.
That Cathcart had with him in Tripoli the book which is here given his name is certain. Where it had been before that is uncertain, but probably Cathcart took it with him from Algiers in 1799, for he says in one of his letters that he found no document at all, not even a copy of the treaty, in the office at Tripoli. That the Cathcart copy was prepared at the same time as the original treaty book is conclusively established both by its appearance and by the internal evidence of its contents; but there is nothing to show when it was received by the Department of State.
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. However, on the first page of the English, which is the "note" mentioned in Article 10 of the treaty, there are certain annotations of Cathcart, as follows:
(a) Referring to the pine and oak boards: "3 inch of the longest & best sort for deck planks planks fit for ship building. Thus saith the Bashaw. Cathcart."
(b) Referring to the masts and yards: "fit for vessels from 2 to 300 Tons."
(c) Referring to the canvas: "the Bashaw insisted upon having 50 bales of Canvas with 12 pieces or bolts in each bale. Cathcart."
(d) At the foot of the page the following: "In April 1799, I gave the Bashaw 10,000 Spanish dollars for the above list of stores & 8,000 for a brig of War of ten guns promised him by Captn OBrien this sum being in full of all demands for ever. Cathcart."
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."
It is in respect of the pages following, or as would be said here, preceding, the fourteen Arabic and corresponding English pages above mentioned, that the differences between the original treaty book and the copy are more notable. In the copy the following are omitted: (a) the certificate of the Spanish Consul General regarding the signatures and seals, and the translation thereof; (b) the certificate of Barlow regarding the seal of the Dey of Algiers; (c) the account of O'Brien, with the certificate appended thereto and the translation thereof; (d) the approval of Humphreys.
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:
Praise be to God! Declaration that this speech and this copy is from two documents [here again the word Oman is used; see the account of the seals, above] containing that [same text] in the same words exactly as in the [document] seal[ed] by the exalted, the honored Hassan Pasha, residing [governing?; see the annotated translation of Article 10 of this treaty] in Algiers, and this peace treaty has been authorized at his hands, consisting of a full [complete] peace treaty forever, may God make his days last and give him victory and make him continue in life with fulness of enjoyments; and likewise sealed by the exalted, the Lord Yussuf Pasha in the well-protected Tripoli, may God strengthen him; and likewise sealed by all the chief officers of his Government and the members of his Divan. We have put them [evidently the articles of peace are meant] in writing completely in the mentioned rescript in the two documents [itmans], and likewise the seal of the exalted, the Lord Hassan Pasha in the vilayet of Algiers, the Gate of Holy War, may she be victorious by the help of God. Thus it has been put down and written in the two documents, at the date of the beginning of the month Rajab, four days from the beginning, in the year 1211.
The second of the three pages is opposite the foregoing and has the following In English:
I Joel Barlow, agent and consul general of the United States of America for the city and Kingdom of Algiers, certify and attest that the foregoing is a true copy of the treaty between the United States of America & the Bey and subjects of Tripoli, and of the several papers accompanying the same. And that the writing in Arabic on the page opposite to this is a certificate of the Dey of Algiers similar to what is here written by me.
In testimony whereof I sign these presents with my hand and affix thereto the seal of the Consulate of the United States-at Algiers this 3d day of January 1797.
[Seal] Joel Barlow
Then comes another (the final) page, in Arabic text, without any English translation or equivalent at all. It has an Arabic seal at the top and under the Arabic text the same red-wax seal of Cathcart as elsewhere. The following translation of that page of Arabic shows that it is in the nature of a confirmation or approval of the treaty on the part of Mustapha Pasha, who became Dey of Algiers upon the death of Hassan on May 15, 1798 (D. S., 3 Consular Despatches, Algiers, letter of Richard O'Brien of July 1, 1798; 7 ibid., letter of Tobias Lear of January 25, 1807). While the Arabic seal is illegible, comparison shows that it is the seal of Mustapha Pasha. Doctor Snouck Hurgronje writes that " the text is drawn up in an abominable style similar to that of the letter which is in place of Article 11 of the treaty"; he mentions that at the right side of the seal are the words, "Praise be to God alone!"; and he gives this translation of the page:
Be that known to whosoever takes cognizance of our rescript concerning this noble affair and this important, clear speech from His [God's] granting success by His grace and His favor, to the results of acts and may He make prosperous by His bounty the end and the present! The right honorable the Lord Mustapha Pasha, may God strengthen him, amen! The reason is that vie have now written down our rescript concerning the agreement and all the articles which have been signed by Yussuf Pasha in the well-protected Tripoli with the Americans, and we accord with their having concluded a full [complete] peace, and we assent to this agreement written down here and to take upon ourselves that contract and that assent exactly as that is contained [in the documents], without any alteration, modification, or change being made in this affair. Greetings!
And this comes from him who has written by authorization of the exalted, the most faithful and blessed, the Lord Mustapha Pasha, may God strengthen him, amen!
At the date of two days from [sic] Zu'lkadah in the end of it, year 1212.
On the authority of Doctor Snouck Hurgronje it is to be added that the above formula of dating is quite uncommon; it might denote either 2 or 28 Zu'lkadah. In the latter case the words "in the end of it" would refer to the month; otherwise, to the year. But the date here intended is 28 Zu'lkadah, A. H. 1212; for by the chronological tables the equivalent date is May 14, 1798, and in this case May 15, 1798, the date of the accession of Mustapha Pasha.
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 Italian translation is a pamphlet with one page of Italian script for each page of the Arabic of the Cathcart copy. When the Italian translation of the treaty was received at the Department of State does not appear. It seems not to have been rendered into English; but as hostilities were begun by Tripoli in May, 1801, after threats for a year earlier, the actual terms of the treaty became, not long after the arrival of Cathcart in Tripoli in 1799, of little practical importance. The content of the Italian translation is discussed below.
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. The Barlow certification of January 4, 1797, which was doubtless contained in a now missing copy, is included, as is also the Humphreys approval or confirmation; but the receipt and the note, each of which Article 10 (according to the Barlow translation) in terms makes a part of the treaty, are not otherwise mentioned.
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. Some account of the Italian translation as a document is given above.
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. There is a full and interesting account of the proceedings in Cathcart's "Journal of the negotation and ratification of the Treaty between the United States of America and the Regency of Tripoli in Barbary" (D. S., 2 Consular Despatches, Algiers).
"A ratified copy of the Treaty with Tripoli" was one of the enclosures with the instructions to Cathcart of December 20, 1798 (D. S., 5 Instructions, U. S. Ministers, 25-30); very likely the ratification embraced the copy certified by Barlow under date of January 4, 1797, for, as above mentioned, the proclamation includes that certification, which is also printed in the Statutes at Large. While the original ratification remained in the hands of Cathcart (Tripoli . . . Letter Book by James Leander Cathcart, 270, 285), 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. 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.
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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.
Kind of like finding a right to privacy, and therefore abortion, in the Constituion. Or not finding a right to life in the the Bill of Rights.
This sounds like that Jefferson quote made up by some ACLU type. I dont remember what it was, but it didn't exist.
In "Innocents Abroad" Mark Twain writes about a loud and obnoxious passenger who made up history to support his arguments. The solution that one of the other passengers in the book was to make up his own "Faux" history in support of his position. I feel like that when I talk to liberals. I guess that this was what they did in this case. (The, the, the US was NOT founded on CHRISTIAN PRINCIPLES! How dare you say that! Everybody KNOWS that they were DEISTS! All of them!)
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