The Barbary Wars and the Treaties with Tripoli
by Saul Montes-Bradley II, edited by Larry Nathan Burns
Originally published in Flintlock & Powderhorn, Vol. 24, No 2, May 2006 
Sailing the Mediterranean may be quite a pleasurable experience nowadays, a fact readily attested to by the thousands who cruise its blue waters every year and by the rich and famous who make it their playground. But while it has always been a busy commercial seaway, it was not always as safe as today. A merchant’s rich cargo was viewed as treasure or booty by avaricious pirates, and from Roman times marauders roamed the waters from the strait of Bosporus to Gibraltar plundering cargoes and enslaving crews. By the end of the 18th Century, things had not improved much. Pirates from North African countries from Libya to Algeria (Barbary Coast) would regularly attack ships of any nation with the consequent loss of treasure and liberty for their owners and crews. The usual way of dealing with such practices was to pay ransom for the hostages. Alternatively, protection could be purchased to prevent attacks altogether, and the great powers of that time found it generally more convenient to pay for protection (tribute) than to engage in a war of uncertain results. Perhaps a weightier consideration was the fact that paid-off pirates would leave British and French ships unmolested while continuing to prey on all of their competitors, thus not so unwittingly contributing to the perpetuation of Franco-British dominance over Mediterranean trade.
On the other hand, defeating the pirate states in war would have freed commerce for all nations and thus represented the loss of a clear advantage. American ships fell within the protection afforded British vessels until the break of hostilities in the Revolutionary War, and later under that afforded the French until the treaty of Paris made them wholly independent of any power. They then entered the wider category of “pay or become prey,” an unwelcome state of affairs that took a heavy toll on American merchant endeavors in the area. It appears that the American independence brought more to the world than just a new address, for the US ambassador to France, who would later become George Washington’s Secretary of State, was the first to propose what at the time was a revolutionary solution to the quandary: go to war if necessary, but pay no tribute. It was easier said than done. When Thomas Jefferson became that Secretary of State, he sent Joel Barlow, a known and able diplomat, to negotiate with the Bey of Tripoli. After long and tedious negotiations, Barlow managed to work out a treaty with two unique characteristics: It clearly stated the United States’ impartiality in matters of religion, and it consented to pay tribute in exchange for protection. It appears that Jefferson’s convincing arguments notwithstanding, the US Navy was in no position to wage a full-scale war across the Atlantic. The Treaty with Tripoli was eventually remitted to the Senate by Washington’s successor:
“Gentlemen of the Senate: I lay before you, for your consideration and advice, a treaty of perpetual peace and friendship between the United States of America and the Bey and subjects of Tripoli, of Barbary, concluded at Tripoli, on the 4th day of November, 1796. John Adams”
The Senate, after due consideration and a report from committee decided:
“Wednesday, June 7, 1797. Mr. Bloodworth, from the Committee to whom was referred the consideration of the treaty of peace and friendship, between the United States of America and the Bey and subjects of Tripoli, of Barbary, made report, that it be adopted; and the report being amended, On the question to agree to the report as amended, It was determined in the affirmative, Yeas 23 [a unanimous vote]. The yeas and nays being required by one-fifth of the Senators present, Those who voted in the affirmative, are—Bingham, Bloodworth, Blount, Bradford, Brown, Cocke, Foster, Goodhue, Hillhouse, Howard, Langdon, Latimer, Laurance, Livermore, Martin, Paine , Read, Rutherfurd, Sedgwick, Stockton, Tattnall, Tichenor, and Tracy.”
And therefore, it was “RESOLVED, (two-thirds of the Senators present concurring therein,) That the Senate do advise and consent to the ratification of the treaty of peace and friendship between the United States of America and the Bey and subjects of Tripoli, of Barbary. ORDERED, That the Secretary lay this resolution before the President of the United States.”
Indeed, only three days later, President Adams proclaimed:
“Saturday June 10, 1797. 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 [sic]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 fulfill the said Treaty and every clause and article thereof.”
These transactions and the full text of the Treaty were published in The Journal of the Senate, including the Journal of the Executive Proceedings of the Senate (John Adams Administration), and several newspapers in New York and Philadelphia.
It came as a surprise then that 134 years later the Treaty became subject of a controversy that lasts to our days. At issue was Article XI, which reads: “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 [SIC],—and as the said States never have entered into any war or act of hostility against any Mehomitan [SIC] 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.”
It appears that in 1930, a Dutch scholar—Dr. C. Snouk Hurgronje—purportedly located the only surviving Arabic copy of the treaty and found that when translated, Article XI was actually a letter, mostly gibberish, from the Bey of Algiers to the ruler of Tripoli. No explanation was advanced for the obvious lapse of context between articles X and XII, nor of the provenance of the alleged copy. That sufficed to have numerous claims put forward as to the illegitimacy of Article XI and its “surreptitious” inclusion in the treaty itself. The fact, however, is that from 1796 until 1930 Article XI was cited numerous times in legal decisions, and successfully used at least once to further our diplomatic interests—during the American takeover of the Philippines. In fact, Hurgronje’s “discovery” was that of an alleged copy in Arabic, the authenticity of which was guaranteed by a Knight of the Order of Christ at the service of the Most Catholic Majesty of Spain that had been used for a translation into Italian widely circulated in the Papal States.
The reader will forgive the authors for sounding a bit facetious; as one cannot help but believe that an obviously flawed foreign-language copy of unknown origin, certified by a Portuguese warrior-monk at the service of a Spanish “Very Catholic” monarch to be used by a third foreign power has—as well it should have—no bearing on discussions regarding the value of a treaty affecting US law. Gibe at it—as one will— the evidence suggests that there was an Article XI, and that the gibberish contained in the Arabic and Italian translations was not it. Precedence should and must be given to the version studied by and advised and consented to by the Senate (unanimously at that), promulgated by the President and published in every compilation of Law since that promulgation for more than a century.
Ironically, and for all this 20th Century hullabaloo, the treaty was short lived on account of the second characteristic described above, and its real deficiency: contrary to Jefferson’s desires, the Treaty with Tripoli stipulated the payment of tribute to allow for the protection of American merchant vessels and, as he feared, tribute only begat more tribute and soon new hostile acts and demands of payment made the situation untenable for American shipping. To make matters worse, and expressing his discontent for lateness in American payments, the Bey of Tripoli exacted a penalty by resuming harassment of US ships. Jefferson, now President, ordered the US Navy to blockade Tripoli and to protect shipping lines for American merchants. After a series of successful encounters, on 31 October 1803 the Philadelphia, a 36-gun frigate under the command of Capt. William Bainbridge ran aground on an uncharted reef off the port of Tripoli, was quickly surrounded by Tripolitan gunboats, and surrendered—its crew yielding 300 prisoners to the Bey. There was no recourse but war. Later, on 15 February 1804, in what Admiral Horatio Nelson would call one of the most bold and daring acts of his age, Lt. Stephen Decatur, Jr. and a small party boarded and destroyed the grounded frigate.
After two years of war, Tripoli, Tunisia and Algeria agreed to the terms negotiated by US envoy Tobias Lear and signed a second Treaty with Tripoli in 1806. As if to answer critics of a later century, the Treaty of 1806 also contained a declaration of US impartiality towards religion, this time Article XVI: “AS the government of the United States of America has in itself no character of enmity against the laws, religion, or tranquility of Mussulmen, and as the said States never have entered into any voluntary war or act of hostility against any Mahometan [SIC] except in defense of their just rights to freely navigate the high seas, it is declared by the contracting parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two nations. And the consuls and agents of both nations respectively shall have liberty to exercise his religion in his own house. All slaves of the same religion shall not be impeded in going to said consul’s house at hours of prayer.”
The conflict with the Barbary States and its resolution strangely do not figure prominently in American studies and yet, they marked the first foreign challenge to Revolutionary America: the first war the US fought outside its own borders, the first time that the US flag flew victorious across the Atlantic—at the capture of Derna, under the able direction of William Eaton, who is well worth another article—and the first time that the American Navy was successfully used to protect shipping lines in the high seas. It also marked a qualitative change in the way nations faced extortion from outlawed countries and, while it would take one more war in 1815 to consolidate the notion, tribute was never again exacted for free passage of goods and people in the North Atlantic and Mediterranean. In the end, the Barbary Wars proved Jefferson right: whatever the cost of war, no course of action is more damaging to nations than submitting to demands imposed by terror. Indeed, a concept that has lost none of its value, and rings especially true today.