This treaty concluded the Tripolitan War, which commenced in 1801. The treaty was negotiated by Col. Tobias Lear, Consul General at Algiers, whose account of the negotiations, dated on board the U. S. frigate Constitution July 5, 1805, is in the archives of the Department of State (7 Consular Despatches, Algiers) and is printed in American State Papers, Foreign Relations, II, 716-18.

THE ORIGINAL DOCUMENTS

It appears from that report of Lear to Secretary of State Madison that the original treaty was in English and Arabic, though first drawn up in English in the form of preliminary articles; but there is no original in the Department of State file; there is a copy, in the two languages, with the signature of Lear; it is in the nature of a pamphlet, but the sheets are not now bound or tied together. The document has the twenty articles of English text, one on a page, running In the usual order on the left pages, with corresponding Arabic on the opposite right pages. Then comes a left page with the English of the final clauses on the part of the United States, signed and sealed by Lear. On the opposite right page is Arabic text. Then comes a left page with the English of the final clauses on the part of Tripoli and English translations of the thirteen signatures for Tripoli, twelve of which are indicated to have been sealed. The opposite right page is of Arabic text, but with no signatures or seals; and finally, there is the receipt for $60,000 ransom, in English and Arabic.

Thus (including the receipt) there are twenty-three pages of English and twenty-three opposite pages of Arabic.

The report of Lear of July 5, 1805, above mentioned, includes the following:

In the forenoon of the 2d of June, Mr Nissen, His Danish Majesty's Consul at Tripoli, came off to the Constitution bringing a Commission from the Bashaw to negotiate with me on the Articles of the Treaty. As I had a sketch prepared I communicated it to Mr Nissen, who observed that there were some articles more favourable to the U. S. than were to be found in any treaty which the Bashaw had with any other nation; yet he would take them on shore, and submit them to the Bashaw. He did so, and returned on board again about 4 P. M. saying that the Bashaw had acceded to the Articles; but was very desireous of having an article expressive of our determination to withdraw our Forces, &' from Derne, and that we should endeavour to persuade his brother to leave his dominions. To the first I could have no objection, as it would be a natural consequence of the peace; but I insisted that if his brother should leave his territory, he should have his wife and family restored to him. Mr Nissen thought this latter clause would meet objections. However, he took it on shore.

In the morning of the 3d of June Mr Nissen came on board again, and declared that the Bashaw would not agree to deliver up the wife and children of his brother. I adhered to that part of the Article, and after a little time he went on shore, saying that if the Bashaw still persisted in refusing that part of the Article the white flag would be hauled down on shore.

At 4 P. M. Mr Nissen came off again with the seal of the Bashaw to the Preliminary Articles; but with a condition that time should be allowed for the delivery of the wife and family of his brother: I consented to it.

So according to that report, the "Preliminary Articles" (which must have been in English) were sealed and were delivered on board the Constitution on June 3, 1805. Lear says that this was "the only instance where a peace has been concluded by any of the Barbary States on board a Ship of War "; but there is no record of what became of the document called the preliminary articles; and it is not even certain that it contained all of the provisions of the definitive treaty. Lear reports a part of his interview with the Pasha of Tripoli on June 4, the textual date of the treaty, thus:

We spoke but little on the subject of the Treaty &c He observed that he had given stronger evidences of his confidence in us than he had ever before given to any nation. he had delivered our people before he had received his own, and as to the money he was to receive, it was merely nominal-the sum was nothing; but - it was impossible to deliver our people without something-The other Articles of the Treaty I might form as I pleased; being convinced I should not insert anything which was not just. I returned his compliments, and assured him he would find our Nation as just, as he had found them brave and persevering.

Indeed the actual date of the execution of the treaty was not June 4, 1805, as stated in its text, but June 10, for Lear's report says:

On the 10th [June] I sent the Bashaw two Copies of the Treaty, with translations in the Arabic language, to be signed by him and his Divan. He requested me to attend the Divan, and see the form of doing business there; and as this was a favour never before granted to a Christian he gave it as an evidence of his respect &c I accordingly attended, and was placed on the same seat with the Bashaw, on his right hand. Great order and solemnity were observed. I presented the Treaty to the Bashaw, who delivered it to his first Secretary to read, article by article. Some observations, and short debates took place on several of the articles; but the Bashaw appeared to explain them satisfactorily. After the whole was read, the form of its presentation and acceptance was written by the Secretary, and the Seals of the Bashaw and members of the Divan affixed to the two Copies; one of which the Bashaw delivered to me in a solemn manner, and with many expressions of friendship. He speaks good Italian.

Thus there were two originals of the treaty; one was retained by the Pasha of Tripoli; the other was delivered to Lear, who turned it over to Dr. John Ridgely, of Maryland, formerly surgeon of the frigate Philadelphia, whom Lear left in charge at Tripoli when he sailed on June 21. The receipt for the $60,000 ransom paid on June 19, 1805, was, Lear says, "given on the Treaty left with Dr Ridgely"; but there is no record of the subsequent history of the document.

That Lear regarded the original treaty as being in English and Arabic and its date June 4, 1805, as recited in its text, appears from the following extract from his letter to Ridgely, dated June 6, 1805 (American State Papers, Foreign Relations, II, 713-14; D. S., 7 Consular Despatches, Algiers):

You will receive herewith the Treaty of Peace and Amity between the United States of America and the Bashaw of Tripoli, in English & Arabic, and executed in due form on the fourth day of the present month.

THE FILE PAPERS

The only papers in the Department of State file of this treaty, aside from the copy which has been described, are the attested Senate resolution of April 12, 1806, and a draft in seventeen articles prepared by James Leander Cathcart in 1802 or 1803, in English and Italian (see D. S., 2 Consular Despatches, Tripoli, letter of Cathcart to the Secretary of State of May 5, 1803). All of thirteen of those seventeen articles and parts of two others appear in similar language in the treaty negotiated by Lear; except for Articles 2, 3, 18, 19, and 20, the text of the treaty is in substance that of the earlier draft; and various articles of that draft were taken from the treaty of 1796-1797 (Document 20). Articles 18 (in part), 19, and 20 of the treaty are similar, respectively, to clauses of other Barbary treaties (Document 14, Articles 20 and 21, and Document 17, Article 13).

Accordingly the texts printed here are the English from the copy above described, including the "receipt" of June 19, 1805, for the $60,000 paid as ransom, and then the Arabic from the same document and in the same order as the English. Following those texts is a comment on the Arabic, which was written in 1930 by Dr. C. Snouck Hurgronje, of Leiden.

THE RATIFICATION

The instructions of June 24, 1806, to Dr. George Davis, who had then just been appointed Consul to Tripoli, do not mention the ratification (D. S., 1 Instructions to (consuls, 269-72); but from the report of Davis of June 2, 1807 (American State Papers, Foreign Relations, II, 724-25), from Tripoli, it may perhaps be inferred that the ratification was in his possession; and it is possible that it was delivered to the Tripolitan Government, for it is there said:

He [the Pasha] asked [on May 12, at a meeting of the Divan] if I would certify that the treaty had been ratified: to which I consented, provided he would execute the third article. He replied . . . that the wishes of our Government should be complied with.

As to the procedure generally in the Barbary States in respect of the ratification and exchange of ratifications of treaties, see the notes to the treaty of 1786 with Morocco (Document 14), to the treaty of 1795 with Algiers (Document 17), and to the treaty with Tripoli of 1796-1797 (Document 20). In this case the final clauses of the treaty, on the part of Tripoli, have express words of ratification: "we do hereby accept, confirm and ratify then."

THE PROCLAMATION

The original proclamation has not been found; but it is printed in the Session Laws of the first session of the Ninth Congress, published in 1806, and in The Laws of the United States, Folwell ea., VIII, 167-77, published in 1807; the date of the ratification by the United States is given therein as April 17, 1806; the proclamation does not include the receipt for ransom, but that receipt is printed with the treaty text in American State Papers, Foreign Relations, II, 698.

NOTE REGARDING ARTICLE 3

Article 3 of the treaty provides for the withdrawal of the United States forces from the province of Derne (or Derna, as now spelled, in Cyrenaica, one of the two colonies of Italian Libia; its port of the same name on the Mediterranean is roughly 500 miles west of Alexandria); that the United States "will use all means in their power to persuade the Brother of the said Bashaw, who has co-operated with them at Derne,"to withdraw from Tripoli; and further that if he, the brother, should so withdraw, " the Bashaw engages to deliver up to him, his Wife and Children now in his power."

"The Bashaw was Yussuf, who signed the treaty; "the brother," who was older, was Hamet Caramalli (this is one of the various spellings; see the comment of Doctor Snouck Hurgronje on the clan name "Karamanli," following his translation of the "receipt" in Document 20, the earlier treaty with Tripoli). Yussuf had become the Pasha in 1796 (Allen, Our Navy and the Barbary Corsairs, 88).

The relations between Hamet Caramalli and the United States have a direct bearing on the documental history of this treaty. Only a summary of them can be given here. A collection of documents in the matter is printed in American State Papers, Foreign Relations, II, 695-725. The page references in the following paragraphs are to that volume.

The message of Jefferson to Congress of January 13, 1806 (696), transmitting an application of Hamet for relief, included the following statement of facts "according to the views and information of the Executive ":

During the war with Tripoli, it was suggested that Hamet Caramalli, elder brother of the reigning Bashaw, and driven by him from his throne, meditated the recovery of his inheritance, and that a concert in action with us was desirable to him. We considered that concerted operations by those who have a common enemy were entirely justifiable, and might produce effects favorable to both, without binding either to guaranty the objects of the other. But the distance of the scene, the difficulties of communication, and the uncertainty of our information inducing the less confidence in the measure, it was committed to our agents as one which might be resorted to, if it promised to promote our success.

Mr. Eaton, however, our late consul, on his return from the Mediterranean, possessing personal knowledge of the scene, and having confidence in the effect of a joint operation, we authorized Commodore Barron, then proceeding with his squadron, to enter into an understanding with Hamet, if he should deem it useful; and, as it was represented that he would need some aid of arms and ammunition, and even of money, he was authorized to furnish them to a moderate extent, according to the prospect of utility to be expected from it. In order to avail him of the advantages of Mr. Eaton's knowledge of circumstances, an occasional employment was provided for the latter as an agent for the navy in that sea. Our expectation was that an intercourse should be kept up between the ex-Bashaw and the Commodore; that, while the former moved on by land, our squadron should proceed with equal pace, so as to arrive at their destination together, and to attack the common enemy by land and sea at the same time. The instructions of June 6 to Commodore Barron show that a co-operation only was intended, and by no means an union of our object with the fortune of the ex-Bashaw; and the commodore's letters, of March 22 and May 19, prove that he had the most correct idea of our intentions. His verbal instructions, indeed, to Mr. Eaton and Captain Hull, if the expressions are accurately committed to writing by those gentlemen, do not limit the extent of his co-operation as rigorously as he probably intended, but it is certain, from the ex-Bashaw's letter of January 3, written when he was proceeding to join Mr. Eaton, and in which he says, "your operations should be carried on by sea, mine by land," that he left the position in which he was, with a proper idea of the nature of the co-operation. If Mr. Eaton's subsequent convention should appear to bring forward other objects, his letter of April 29 and May 1 views this convention but as provisional, the second article, as he expressly states, guarding it against any ill effect, and his letter of June 30 confirms this construction. In the event it was found, that, after placing the ex-Bashaw in possession of Derne, one of the most important cities and provinces of the country, where he had resided himself as Governor, he was totally unable to command any resources, or to bear any part in cooperation with us. This hope was then at an end, and we certainly had never contemplated, nor were we prepared to land an army of our own, or to raise pay, or subsist an army of Arabs, to march from Derne to Tripoli, and to carry on a land war at such a distance from our resources. Our means and our authority were merely naval; and, that such were the expectations of Hamet, his letter of June 29 is an unequivocal acknowledgment. Whilst, therefore, an impression from the capture of Derne might still operate at Tripoli, and an attack on that place from our squadron was daily expected, Colonel Lear thought it the best moment to listen to overtures of peace, then made by the Bashaw; he did so; and, while urging provisions for the United States, he paid attention also to the interests of Hamet, but was able to effect nothing more than to engage the restitution of his family; and even the persevering in this demand suspended for some time the conclusion of the treaty.

That " cooperation " between the United States forces in the Tripolitan War and those of Hamet was formally authorized, is beyond doubt (the Secretary of State to Cathcart, August 22,1802, page 701; the Secretary of the Navy to Commodore Barron, June 6, 1804, page 702; verbal orders of Commodore Barron to Captain Hull, September 15,1804, page 703).

William Eaton, who had been appointed "navy agent for the several Barbary regencies" by the Secretary of the Navy on May 30, 1804, under Commodore Barron (702), was in command of such Americans as were at Derne with Hamet in the spring of 1805. In his letter to the Secretary of the Navy of December 5, 1805 (719), Eaton says that the above-mentioned verbal instructions of Commodore Barron to Captain Hull of September 15,1804, "and my convention with Hamet Bashaw, of February 23,1805, comprise all the obligations entered into with Hamet. " The convention itself (706) is near enough to being an international act to be printed here in full:

God Is Infinite.

ARTICLE 1. There shall be a firm and perpetual peace and free intercourse between the Government of the United States of America and His Highness Hamet Caramanly Bashaw, the legitimate sovereign of the kingdom of Tripoli, and between the citizens of the one and the subjects of the other.

ART. 2. The Government of the United States shall use their utmost exertions SO comports with their own honor and interest, their subsisting treaties, and the acknowledged laws of nations, to re-establish the said Hamet Bashaw in the possession of his sovereignty of Tripoli, against the pretensions of Joseph Bashaw, who obtained said sovereignty by treason, and who now holds it by usurpation, and who is engaged in actual war against the United States.

ART. 3. The United States shall, as circumstances may require, in addition to the operations they are carrying on by sea, furnish the said Hamet Bashaw, on loan, supplies of cash, ammunition, and provisions, and if necessity require, debarkations of troops, also to aid and give effect to the operations of the said Hamet Bashaw, by land, against the common enemy.

ART. 4. In consideration of which friendly offices, once rendered effectual, His Highness Hamet Caramanly Bashaw engages, on his part, to release to the commander-in-chief of the forces of the United States, in the Mediterranean, without ransom, all American prisoners who are, or may hereafter be, in the hands of the usurper, said Joseph Bashaw.

ART. 5. In order to indemnify the United States against all expense they have or shall incur, in carrying into execution their engagements, expressed in the second and third articles of this convention, the said Hamet Bashaw transfers and consigns to the United States the tribute stipulated by the last treaties of His Majesty the King of Denmark, His Majesty the King of Sweden, and the Batavian republic, as the condition of peace with the regency of Tripoli, until such time as said expense shall be reimbursed.

ART. 6. In order to carry into full effect the stipulation expressed in the preceding article, said Hamet Bashaw pledges his faith and honor faithfully to observe and fulfil the treaties now subsisting between the regency of Tripoli and their Majesties the Kings of Denmark and Sweden, and with the Batavian republic.

ART. 7. In consideration of the friendly disposition of His Majesty the King of the Two Sicilies towards the American squadron, His Highness Hamet Bashaw invites His said Sicilian Majesty to renew their ancient friendship, and proffers him a peace on the footing of that to be definitively concluded with the United States of America, in the fullest extent of its privileges according to the tenor of this convention.

ART. 8. The better to give effect to the operations to be carried on by land in the prosecution of the plan, and the attainment of the object pointed out by this convention, William Eaton, a citizen of the United States, now in Egypt, shall be recognised as general and commander-in-chief of the land forces which are or may be called into service against the common enemy; and His said Highness Hamet Bashaw engages that his own subjects shall respect and obey him as such.

ART. 9. His Highness, said Hamet Bashaw, grants full amnesty and perpetual oblivion towards the conduct of all such of his subjects as may have been seduced by the usurper to abandon his cause, and who are disposed to return to their proper allegiance.

ART. 10. In case of future war between the contracting parties, captives on each side shall be treated as prisoners of war, and not as slaves, and shall be entitled to reciprocal and equal exchange, man for man, and grade for grade; and in no case shall a ransom be demanded for prisoners of war, nor a tribute required as the condition of peace, neither on the one part nor on the other. An prisoners on both sides shall be given up at the conclusion of peace.

ART. 11. The American consular flag in Tripoli shall for ever be a sacred asylum to an persons who shall desire to take refuge under it, except for the crimes of treason and murder.

ART. 12. In case of the faithful observance and fulfilment on the part of His Highness, said Hamet Bashaw, of the agreements and obligations herein stipulated, the said commander-in-chief of the American forces in the Mediterranean engages to leave said Hamet Bashaw in the peaceable possession of the city and regency of Tripoli, without dismantling its batteries.

ART. 13. Any article suitable to be introduced in a definitive treaty of peace between the contracting parties, which may not be comprised in this convention, shall be reciprocally on the footing of the treaties subsisting with the most favored nations.

ART. 14. This convention shall be submitted to the President of the United States for his ratification. In the mean time there shall be no suspense in its operations.

Done at Alexandria, in Egypt, February 23, 1805, and signed by said liamet Bashaw, for himself and successors, and by William Eaton, on the part of the United States.

ADDITIONAL ARTICLE, SECRET.

His Highness Hamet Bashaw will use his utmost exertions to cause to surrender to the commander-in-chief of the American forces in the Mediterranean the usurper Joseph Bashaw, together with his family, and chief admiral called Maurad Dais, alias Peter Lisle, to be held by the Government of the United States as hostages, and as a guaranty of the faithful observance of the stipulations entered into by convention of the 23d February, 1805, with the United States, provided they do not escape by flight.

The text of that convention is also printed in Prentiss, The Life of the Late Glen. William Eaton, 297-301. For some account of the military operations of Eaton and the march from Alexandria to Derne, see ibid., 295-392, and also Allen, Our Navy and the Barbary Corsairs, Chapter XIV.

A Senate committee report of March 17, 1806, which is severely critical of the course of Colonel Lear, is in Compilation of Reports of the Senate Committee on Foreign Relations, VIII, 17-20.

THE LEAR DECLARATION

The relations between the United States and Hamet were thus the reason for Article 3 of the treaty; but the remarkable part of the documental history is that Lear concealed from his own Government an essential part of his action at the time in respect of Hamet.

In Lear's report of July 5, 1805, to the Secretary of State, cited above, he says that the seal of the Pasha of Tripoli to the preliminary articles of June 3, 1805, was on "condition that time should be allowed for the delivery of the wife and family of his brother"; and he adds, "I consented to it."

But Lear said nothing of the fact that on June 5, 1805, one day after the textual date of the treaty, he signed, as Commissioner of the United States, a formal declaration which expressly modified the third article of the treaty by giving four years for the delivery of the family of Hamet Caramalli; that declaration remained wholly unknown to the Government of the United States until some time in 1807.

Furthermore, in view of the situation of General Eaton and the Americans with him at Derne at the time of the treaty, the substance of its terms was of necessity to be communicated to him. Lear's letter to Eaton on the subject was written on June 6, 1805, one day after the date of his secret declaration, and was sent by the U. S. frigate Constellation, (Campbell. In that letter Lear gives an account of the treaty which in this respect is as incomplete as, and even more misleading than, his report to the Secretary of State of July 5, 1805. One paragraph of the letter, which is printed in part in American State Papers, [foreign Relations, II, 714-15, and in full in Prentiss, The Life of the Late Gen. William Eaton, 364-66 (the original is in the library of the Historical Society of Pennsylvania), is as follows:

I found that the heroic bravery of our few countrymen at Derne, and the idea that we had a large force and immense supplies at that place, had made a deep impression on the Bashaw. I kept up that idea, and endeavored from thence to make an arrangement favorable to his brother, who, although not found to be the man whom many had supposed, was yet entitled to some consideration from us But I found that this was impracticable; and that if persisted in would drive him to measures which might prove fatal to our countrymen in his power. I, therefore, engaged, of course, that, on the conclusion of peace, we should withdraw all our forces and supplies from Derne, and other parts of his dominions; and the Bashaw engages, that if his brother withdraws himself quietly from his dominions, his wife and family should be restored to him. This is all that could be done; and, I have no doubt, the United States will, if deserving, place him in a situation as eligible as that in which he was found.

It seems, however, that Eaton knew that there was some secret engagement made by Lear at the time of the treaty. Referring to Lear, Eaton wrote in his letter of August 9, 1805, to the Secretary of the Navy (Prentiss, The Life of the Late Gen. William Eaton, 389-90) as follows:

He goes further. He not only negotiates Hamet Bashaw out of his own territories, but pledges the faith of the United States to carry the stipulation into execution; and, at the same time, secretly convenes with Joseph Bashaw that the fulfilment of his engagement in this article shall never be made a subject matter of consideration. Was Mr. Lear sent out to cooperate with Joseph Bashaw! Or is this a crisis in the circumstances of the United States which renders darkness and duplicity necessary to our political safety or existence? Is it possible that anything can render it so, in favor of a piratical chieftain of a Barbary garrison whom one frigate and a few tenders had so often driven from his strong holds? If so, it ought to appear to justify our conduct to the world.

When George Davis arrived as Consul at Tripoli on May 7, 1807, and demanded the execution of Article 3 of the treaty, he was handed the declaration which was signed by Lear in the following terms:

Whereas his Excellency the Bashaw of Tripoli has well grounded reasons to believe, if the wife and children of his brother should be delivered up to him immediately on his leaving his (the Bashaw's) dominions, as expressed in the third article of the treaty of peace and amity concluded between the United States of America and the Bashaw of Tripoli on the fourth day of the present month, that he, the said brother, would engage in new operations of hostility against him, to the disturbance of the internal tranquility of his dominions; And the said United States being willing to evince their good disposition to preserve the said treaty with sincerity, and that tranquility should be secured in the dominions of the said Bashaw-do hereby agree to a modification of the said article of the treaty aforesaid, so that the term of four years, from the conclusion of said treaty, shall be fixed for the execution of the engagement of the Bashaw to deliver to his brother, his wife and children; during which time the said brother is to give evident proofs of his peaceful disposition towards the Bashaw, and of his determination not to disturb the internal tranquility of his dominions.

Given under my hand and seal, at Tripoli in Barbary this fifth day of June in the year one thousand eight hundred & five.

(Seal.) TOBIAS LEAR

Commissioner of the U. States of America for concluding a peace with the Bashaw of Tripoli.

A copy of this " secret article," as Ridgely calls it, certified by him as "a true and faithful copy of the original," is in the archives of the Department of State (3 Consular Despatches, Tripoli).

Davis stood firm in his demand for the execution of the third article of the treaty, notwithstanding the declaration of Lear; the effect of the "secret article" he brushed aside; and he told the Pasha that "our treaty was known to all the world, and our public faith pledged in their [the family of Hamet] behalf: that his brother had co-operated with us, and to deceive him in such a tender point was to disgrace us as a nation"; and the Pasha of Tripoli yielded. The report of Davis, dated at Tripoli June 2, 1807, which has been quoted, is in D. S., 3 Consular Despatches, Tripoli; it is printed with the text of the declaration of Lear of June 5, 1805, in American State Papers, Foreign Relations, II, 724-25.

The message of Jefferson to the Senate of November 11, 1807 (ibid., 696-97; Executive Journal, II, 58), explains the ignorance of the Government regarding the Lear declaration of June 5, 1805. It concludes as follows:

How it has happened that the declaration of June 5, has never before come to our knowledge, cannot with certainty be said; but whether there has been a miscarriage of it, or a failure of the ordinary attention and correctness of that officer in making his communications, I have thought it due to the Senate, as well as to myself, to explain to them the circumstances which have withheld from their knowledge, as they did from my own, a modification, which, had it been placed in the public treaty, would have been relieved from the objections which candor and good faith cannot but feel in its present form.

As the restoration of the family has probably been effected, a just regard to the character of the United States will require that I make to the Bashaw a candid statement of facts; and that the sacrifices of his right to the peace and friendship of the two Countries, by yielding finally to the demand of Mr. Davis, be met by proper acknowledgments and reparation on our part.