The emoluments clause was recently featured in the press, with allegations that the president was receiving financial benefits from foreign powers with his suggestion, later discarded, that his Doral, Florida golf resort be used for the next G-7 summit.  Interestingly, a reading of the Constitution indicates that the term “emoluments” was used in various sections and for different reasons.  Commonly, emolument was used in reference to payment for services of various officials and legislatures.[1]  This definition [2] appeared in official documents, newspapers, and other references throughout the Early State Records collection.  However, as used in Article I, Section 9, Paragraph 8, emoluments was used in a touchstone prohibition for both the executive and legislative branches to receive compensation from any gift, payment or value from a foreign state or its representatives.[3]

Historically the clause’s presence in the Constitution was a carryover from the Articles of Confederation.  As noted in the margin notes and in the text in LLMC #35101, Article VI restricted the powers of states in entering any separate foreign alliances.  That same section prohibited any person holding an office under the United States, or any of them, from accepting any foreign emoluments.  Finally, Congress could not grant any titles of nobility.  While somewhat different language, this section in the Articles of Confederation focused on preventing unwarranted outside influences.[4]

Avoiding the control of foreign powers also became part of Article I of the United States Constitution.  During the ratification process, it appears that the emoluments prohibition (or Nobility Clause) was not challenged during state conventions.  For example, in the Journal of the Proceedings of the Convention of the State of New York, LLMC #20586, the delegates resolved first to read, consider and debate each clause or article before individual clauses were considered (p.43); numerous proposed and explanatory amendments were added to the ratified constitution (pp.71-82).  Despite numerous committees and a thorough vetting of the document, there appeared to be no debate regarding the emoluments clause, with apparent acceptance by the delegates.[5]

During the Civil War, the Constitution of the Confederate States retained a version of this restriction.  The Confederate Constitution stated in Article I, Section 9 (11) that “No title of nobility shall be granted by the Confederate 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.” (LLMC #21135, p.501)

States also limited salaries and benefits in their respective constitutions.  Both before and after the Civil War, the North Carolina state constitution had a section regarding emoluments.  In LLMC #21539, Section 22 of the December 7, 1776 Declaration of the Rights from North Carolina stated, “That no hereditary Emoluments, Privileges or honors ought to be granted or conferred in this state.”  Later, under mandate by the Reconstruction Act, North Carolina passed a constitution and ordinances at its convention of 1868.   While no specific prohibition of outside emoluments were mentioned, there was a limiting provision which stated: “No man or set of men are entitled to exclusive or separate emoluments or privileges from the community but in consideration of public service.  (Article 1, Section 7)” LLMC 21287.   Even the Constitution of Virginia, passed in 1864 in Union-held Alexandria, held that the governor would be paid a salary of $5,000 annually, and would “receive no other emolument from this or any other government.” (LLMC 22270)[6]  While Virginia does not cite this constitution in its listing of prior constitutions, the consistency of the inclusion of this clause seemingly crosses all political and social divides. 

However, every discussion of emoluments and the executive branch needs to include the position of George Washington.  In a letter of May 22, 1782 from Colonel Lewis Nicola, who had suggested that Washington take the title of “king,” General Washington responded:  “If I am not deceived in the knowledge of myself, you could not have found a person to whom your schemes are more disagreeable…” (LLMC #40818, Journal of Proceedings of the House of Delegates of Maryland, Jan.-Mar.1976, p.1342).  Later, in a speech addressed to Congress shortly after taking the oath of office on April 30, 1789, President George Washington reminded the legislature that he had taken no salary as leader of the Continental Army, considering this as his duty in the service of his country.  Consistent with this resolution, he then declined and renounced, “as inapplicable” any personal emoluments which were included in the provisions of the executive branch.  On May 8^th, the House of Representatives responded by stating that his resolution demonstrated the “the purity, whilst it increases the lustre of a character, which has so many titles to admiration.” (Reprinted in The Cumberland Gazette, May 14 and 22, 1789 editions, LLMC #24258). 

While most executives in government cannot eschew their salaries, President Washington’s emphasis on duty and personal honor is certainly a standard for any consideration of the emoluments clause.  Life may now be more financially complex, but honor is not. 

Early State Records is one of LLMC’s most substantial initiatives, thanks to the patronage of several libraries which are listed *here*.  In Phase One, LLMC is digitizing 1028 reels from the Library of Congress’ microfilm collection, containing the records, treatises, newspaper accounts and other legal or related documents from pre-colonial through early statehood of the 15 Atlantic Coast states as well as Native American tribes.  Applying advanced digitization post-processing and value-added metadata  to these primary and secondary sources which were held in numerous state, federal and foreign libraries, historical societies, archives and legislatures, LLMC’s LLMC Digital online service will make many rare and little seen documents, such as the broadsides, available to researchers and society as a whole. 

Written by Joyce Savio Herleth, Saint Louis University School of Law 

[1] For example, LLMC #20599 a 1846 Manual for the use of the Convention to revise the New York State Constitution is a good resource of the textbook use of emoluments.  Additionally, various other state constitutions were attached, providing various other examples. 

[2] https://www.merriam-webster.com/dictionary/emolument

[3] “No 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”  See, for example LLMC #21253, pp.9-10.

[4] See also the appendix of the 1700-97 Laws of the State of Delaware, LLMC #23744, v.2, p.684.

[5] See also LLMC #21253, regarding the proceedings and debates of the Convention of North Carolina in Hillsborough, begun on July 21, 1788, for the ratification of the United States Constitution.

[6] This version was passed by the Unionist government of the state of Virginia (Alexandria government), in exile during the Civil War.  This constitution officially abolished slavery in the state, although voting was still limited to white men.  An official repudiation of the Confederate government, and barring of any Confederate official from public office, was also included.  See LLMC #22271 for a variant document.