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
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
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
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.
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
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
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
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