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Introduction

The Foreign Emoluments Clause limits the ability of certain federal officials to accept presents, emolument, offices, or titles from foreign governments. The clause traces its roots to a Dutch law that banned Netherlands officials from accepting gifts ¹from foreign governments. Although the Articles of Confederation had its own Foreign Emoluments Clause, little debate occurred during the Philadelphia Convention about the Constitution’s analogous provision, which departed from its Articles predecessor. This provision gives rise to questions about the original public meaning of “emolument” how Congress can consent to a covered officer’s accepting a foreign emolument, what constitutes a “foreign State,” and which federal officers are covered by the clause. 

History Before 1787

Many provisions of the Constitution were premised on English statutes and parliamentary precedents. By contrast, the roots of the Foreign² Emoluments Clause lie in the Netherlands. A 1651 Dutch law prohibited government officials from taking any gifts “of whatever sort” from foreign governments ^[1].¹ At the time, it was a common diplomatic practice for a host country to give expensive gifts to departing diplomats from foreign countries. The Dutch rule was something of an outlier. Abraham de Wicquefort, a Dutch political writer, criticized the rule. Because “[t]he custom of making a present . . . is so well established,” he said, and “is of as great an extent as the law of nations itself, there is reason to be surprised at the regulation that has been made on that subject in Holland.”^[2]ii 

The Articles of Confederation, ratified in 1781, apparently borrowed from this Dutch rule. Article VI, Section 1 provides that no “person holding any office of profit or trust under the United States, or any of them [i.e., any state], [shall] accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.”^[3]3iii This text applied to certain officers in both the Articles and state governments. The authors of this essay take the position that delegates to the Confederation Congress held neither an “office . . . under the United States” nor an office under any state and therefore were not subject to this provision .^iv 

The Articles’ text imposed an absolute⁴ prohibition against covered officers accepting foreign gifts. ⁵However, one scholar suggests that the “accepted interpretation” followed the Dutch rule, under which the gift could be kept if the government granted permission.^v In 1780, for instance, before the Articles were ratified, Arthur Lee was a minister from the United States to the Court of Versailles. When Lee departed from France, King Louis XVI gave him a gold snuffbox set with diamonds and a picture of the monarch as a “mark of his Majesty’s esteem.” This type of gift was not uncommon; it was the sort of gift the French king gave to other departing ministers.^vi Lee deposited the box with the President of the Continental Congress, as he did not think he could retain it “without express approbation of Congress.” Congress “approve[d] of his retaining the picture” that was “set with the diamonds.”^vii 

Subsequent to the Articles’ ratification, in 1785, Benjamin Franklin concluded his service as minister to France.^viii Upon Franklin’s departure, King Louis XVI gave him a snuffbox similar to the one he had given Lee and set with more than 400 diamonds.^ix On March 3, 1786, Congress approved Franklin’s keeping the gift.^[10]x That same day, Congress also gave permission to John Jay, a minister to Spain, to keep a horse presented by the king of Spain.^xi This practice would inform the Foreign Emoluments Clause under the Constitution. 

The Constitutional Convention

During the Constitutional Convention, there was little discussion about the Foreign Emoluments Clause. The Committee of Detail proposed that “[t]he United States shall not grant any Title of Nobility.”^[12]xii This provision was adopted unanimously.^[13]xiii Immediately after this vote, Charles Pinckney of South Carolina “urged the necessity of preserving foreign Ministers & other officers of the U. S. independent of external influence.” He proposed an amendment after the Title of Nobility Clause: “No person holding any office of profit or trust under the U.S. shall without the consent of the Legislature, accept of any present, emolument, office or title of any kind whatever, from any King, Prince or foreign State.”^[14]xiv The motion was passed unanimously without any recorded debate.^[15]xv 

This text was referred to the Committee of Style.^xvi The Committee appears to have made slight alterations. For example, it changed “office of profit or trust under the United States” to “Office of Profit or Trust under them.” Here, “them” refers back to “the United States” referenced in the Title of Nobility Clause. (See Essay No. 75.) At the time of the Framing, “the United States” was viewed as a plural entity—a grouping of states—rather than as a single collective entity.^xvii The Committee also changed “consent of the Legislature” to “Consent of the Congress.” The final, adopted text provided that “[n]o Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”^xviii 

The Ratification Debates

The Federalists and Anti-Federalists agreed that the Constitution would limit opportunities for foreign corruption. In Federalist No. 22, Alexander Hamilton wrote that “[o]ne of the weak sides of republics . . . is that they afford too easy an inlet to foreign corruption.” In the Virginia convention, Edmund Randolph said that the Foreign Emoluments Clause “is provided to prevent corruption.”^xix Randolph mentioned that “a box was presented to our ambassador by the king of our allies.”^xx This was likely a reference to one of the snuffboxes given by King Louis XVI. The clause “was thought proper,” Randolph explained, “in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.”^xxi Nevertheless, in both cases, the recipients were allowed to keep their diplomatic gifts. 

And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State

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