Did George Washington Violate the Constitution’s Foreign Emoluments Clause by “Soliciting an English Official” for a “Business Transaction” in 1793? Answer: No.

Jonathan Hennessey
Feb 22 · 14 min read

[A Reply to Law Professor Eugene Kontorovich]

The broad understanding of the U.S. Constitution’s Foreign Emoluments Clause continues to be a woefully shoddy one — much to the benefit of the President Donald Trump.

Posts on social media by both the administration’s defenders and its detractors reliably ring with first-order misapprehensions about it. Many clearly want to formulate the clause into a “gotcha!” magic potion with the power to instantaneously condemn either the president or his critics.

So trigger-happy are they to shoot the Foreign Emoluments Clause into the rhetorical firefight that they don’t even bother to read its words. Legion are the dubiously informed who will tell you, in a mistaken oversimplification, that Jimmy Carter gave up his peanut farm on account of this Constitutional stricture. (In reality, President Carter sold all his stocks and placed his real estate and business holdings in a blind trust before taking office to proactively side-step even the perception of conflict of interest when setting agricultural policy. Abiding by the Constitution was not, per se, a driving motivation for Mr. Carter’s actions, but then again it has been a long while since America’s chief magistrate evidenced such honorable impulses).

And while some elements of the clause’s construction, even the word “emolument” itself, may invite a degree of bewilderment, the meaning of its other aspects are quite plain. Namely, the clear indication that the clause is meant to operate on emoluments originating from foreign “states” — not from persons or businesses based abroad who are free of official attachment to their governments.

An Istanbul cosmetics executive (a private Turkish citizen) may therefore splendorously sleep away the nights of her business conference at the Trump International Beach Resort in Miami with no concurrent offense to the Supreme Law of the Land. But it would be an altogether different story for suites rented there to Turkey’s Minister of Science, Technology, and Industry.

As the Trump Administration races against the various emoluments lawsuits vying to run it down, it has been instructive indeed to witness Federalist Society-affiliated law professors blasting out of their own starting blocks to counter Trump’s opponents with Foreign Emoluments Clause “scholarship.”

These law professors have, however, in their sprints through historical research, badly stumbled.

Track and field events are typically wanting in avid spectators. Like so, not many in the body politic have been paying attention to the clumsy missteps of these Federalist Society researchers. Their poor performances, however, should still be recorded for posterity and displayed on the scoreboard.

Law professors Josh M. Blackman and Seth Barrett Tillman set forth a claim that George Washington violated the Article II Domestic Emoluments Clause by purchasing lots in the under-development city of Washington, D.C., in 1793. In my article “A Prospect of Ample Funds: The Washington ‘Emolument’” I presented primary documents demonstrating, in fact, that Washington had acquired only privately-owned land. (This research has been independently verified by the Office of the Inspector General of the U.S. General Services Administration, in its January 16, 2019, report). Washington’s purchases were not territory that had ever actually been United States property. No offense to the Constitution, the evidence of the chain of title indicates, was ever generated by that action.

But George Washington’s conduct has also been sifted through for nuggets of beneficial emoluments clauses precedent by law professor Eugene Kontorovich, now of the recently rebranded Antonin Scalia Law School headquartered at George Mason University.

As with the cases of other Federalist Society members sallying into the subject, the supposed “obscurity” of the Foreign Emoluments Clause and the often-cited flimsiness of the Constitutional case against the president, did not prevent their writing from getting ink in blue-chip publications.

Professor Kontorovich authored an article published in the April 14, 2017, edition of the Wall Street Journal.

In “Did George Washington Take ‘Emoluments?’” Kontorovich posits that our republic’s first president undertook an action that potentially violated the Foreign Emoluments Clause.

The obvious implication here, as elsewhere, is that if George Washington did so, and did so, so temporally intimate with Constitution’s original intent, then the current claims against the standing chief executive are baseless.

Like his predecessors, however, Kontorovich proves himself to be overly presentistic and less than careful in his research and suppositions. His own claim about George Washington turns out to be undermined by a more thorough review of the factual circumstances.

Kontorovich writes,

On December 12, 1793, Washington wrote to Arthur Young, an officer of the U.K. Board of Agriculture, an entity newly created and funded by Parliament at the initiative of William Pitt. The president asked for Young’s help in renting out his Mount Vernon lands to secure an income for his retirement. Not finding customers in America, he wondered if Young…could find and organize some would-be farmers in his [Young’s] home country and send them over,

Washington’s solicitation of a U.K. Board of Trade member suggests that either business transactions are not emoluments at all, or foreign entities such as state banks and television stations do not fall within the scope of the clause.

Such a direct business solicitation of a foreigner with foreign government ties would surely lead to cries of constitutional breach if Mr. Trump did it.

In a concurrent Washington Post article about his Wall Street Journal article, Kontorovich emphasized that “Washington insisted that his December 1793 letter to Young be kept private.” Kontorovich furthermore plays up his sense that President Washington was vexed over the “impropriety” of his letter to Young.

What is the insinuation here? That Washington was aware that he was trampling on the Foreign Emoluments Clause by dealing this way with someone so clearly in the position of a British government official.

Let’s start our examination of Kontorovich’s case with the relationship between George Washington and Arthur Young, for Kontorovich’s Wall Street Journal article is completely and conspicuously absent of substance and background on this point.

Arthur Young, of County Essex, England, was an agricultural reformer of serious standing and a prolific writer. In very early 1786, one and a half years before the U.S. Constitution was drafted and two and a half before it was ratified, Young reached out by letter to Washington, declaring himself inspired by the “spectacle of a great commander” retiring from the glories of warfare (having defeated and humiliated his own beloved Albion, no less) to dedicate the rest of his life to “the amusements of agriculture.” Young professed that “all the feelings in his bosom” compelled him to desire to see his “brother farmer” in America flourish, and so sent him bound copies of some agricultural publications he, Young, had published.

So began a long friendship-by-correspondence between Young and Washington. They debated the merits of the American style of farming, where land was cheap but labor expensive, versus the British style, which featured a nearly opposite dynamic. Even Thomas Jefferson was brought in to offer farming insights during their years of writing. Young graciously sent Washington seeds for plants like chicory, and Washington responded with books about America and a fleece of the local Virginia wool.

These were men who shared a passion for husbandry, for stewardship of land, and a great fondness for each other. The relationship is worlds more intimate than Kontorovich implies when he characterizes Washington’s 1793 letter to Young as a cold, on-the-sly “direct business solicitation.”

Now let us look at the letter itself, written, crucially, during Washington’s presidency — the only time the Foreign Emoluments Clause could have affected his dealings with Young. We shall analyze the nature of this alleged “solicitation.”

Washington was ever looking forward to his retirement as the strife of the United States’ early years came progressively to get under his skin. (This was the period when sniping between Secretary of State Jefferson Secretary of the Treasury Alexander Hamilton was reaching a fever pitch, and the extremely troublesome French emissary Edmond Charles Genet was threatening to touch off an international incident.) Washington was contemplating giving up the duties of personally supervising some 3,260 acres of land around his Mount Vernon estate. He would instead take to inhabiting only the mansion itself, and leasing the remaining acreage to “good” and “substantial farmers, of wealth & strength sufficient to cultivate them.”

In his letter Washington testified to Young that he had heard that many skilled farmers had been immigrating to America from Britain and Ireland, and that more might come should a favorable opportunity for Transatlantic passage be presented. Washington admits that he has even heard from some would-be migrants about leasing farms at Mount Vernon. But the problem was, these were men whom Washington did not know, and whose reputations he — given the spartan state of communications and accessible records in the 18th Century — could not glean.

Washington then proceeded to ask Young if he might “make his [Washington’s] sentiments known to that class of people who might wish to avail themselves of the occasion.”

So in essence, Washington here is asking a good and knowledgeable friend, one with many personal contacts in British agricultural circles, for advice on finding reliable and trustworthy farmers — ones who may be in a position to practice the very style of Old World agriculture Young had been vigorously advocating the United States to adopt. Our president was “networking,” in modern parlance. He was not looking for “customers,” as Kontorovich puts it in the style of a 21st Century marketing department that is attempting to scratch up sales leads.

The proposition this constitutes an “emolument” — writing a friend of some seven years’ standing for advice, and for aid locating worthwhile tenants — strained as such a proposition might be, can be set aside.

And why is that?

We shall proceed now to look back at another of Kontorovich’s suppositions: that Arthur Young can be understood as an official of an entity that is part of a foreign government.

Arthur Young, by late September, 1793, had come to serve as the secretary of a body entitled the “Board of Agriculture and Internal Improvement.” (The London Star of September 1722, 1793, indicates that date as the “first day of the Board’s being assembled.”) Washington, in the December, 1793 letter we are examining, never mentions this Board. He does not reference Young’s involvement in it. One can only conclude that newfound organization is immaterial to their matter at hand.

The Board of Agriculture is not mentioned either in Washington’s previous letter to Young, in September of that year. So it is abundantly plausible that when Washington sought out Young’s advice on farm tenants, he never so much as knew about the Board’s existence.

With our instant, global mass communications today it is easy to forget that it required, generously, weeks for a mail ship to cross just from Liverpool or Bristol to New York. Can Washington really be said to have been soliciting emoluments from a foreign state entity there is no reason to believe he actually knew existed?

Even that is a matter we can set aside.

Now, it is well within the style of Federalist Society/George Mason University types to cast their gaze upon most any public activity, like a Board, and react in revulsion at the foul specter of the “Leviathan” of Big Government.

Surely the term “Board of Agriculture” hits modern ears like a name that would be attached to a sprawling and impersonal bureaucracy. But this is precisely the juncture at which Kontorovich proves to be at his most presentistic. His instincts lead him astray of thoroughgoing and holistic historical research. Kontorovich proceeds to make the same sort of mistake he commits when in the Wall Street Journal piece he refers to Young’s organization as a “U.K. Board of Trade.” The fact is that Young’s native country was then known as “Great Britain.” It did not become the “United Kingdom” until 1801.

The Board of Agriculture was not an arm of the British government, staffed by government employees, or with any executive, regulatory, or legal power. It was a private society; a “closed corporation” with thirty members and its own elected president, secretary, and treasurer — just about one and all country gentlemen. The Board of Agriculture convened for a time amounting to, generally, just over four months per year. It did not even have government office space, meeting, instead, in the home of its founder, Sir John Sinclair.

The Board of Agriculture did receive a charter from Parliament. Yet it had to pay an annual fee of £85 to maintain this. The Board of Agriculture was chartered as a “body politic and corporate,” i.e., an incorporation, matching the legal status of the Highland Society of Scotland, brought into existence in 1784.

The Board’s members were not graced with the parliamentary privilege of franking, i.e., use of the mails for free to conduct business and coordinate among its members.

The Board of Agriculture did receive a petty amount of “pecuniary assistance” from Parliament: £3,000 per annum. (It is meaningfully noted in the January 4, 1794, London Annual Register that this sum is £2,000 less than Parliament had disbursed to “turkey merchants” on March 31 of the previous year.)

When Sir John Sinclair, on May 15, 1793, rose in the House of Commons to suggest that a Board of Agriculture be established, he specified that the body would be instituted only for “a time limited” with some grant of funds to “defray the expenses.”

In fact, to fund itself, the Board of Agriculture had to borrow money and exert donations from its honorary members. This shoestring operation, with minimal government financing, and its manner of hustling private finance among moneyed gentlemen is a model, we might be forgiven for thinking, of which the Federalist Society would heartily approve.

The Board was never was tasked with implementing British farm policy, because such a policy did not exist at this time. That simply was not a feature of period nation-states. Instead the Board conducted surveys (initially with the understanding that farmers would be willing to do this work for free, for the benefit of the country), wrote reports, made recommendations, published farm information, and administered bounties for drainage experiments and pasture plowing. The organization struggled with attendance of its own members. Long recognized as just a semi-official fiefdom and pet project of its founder, the Board of Agriculture disappeared in 1822, a few years after Arthur Young’s own death.

What we can only make of this Board of Agriculture, then, is that its modern analogue is something like a research and development center that receives a degree of federal funding, a government contractor, or a nonprofit that the federal government partners with for Farm Security and/or Rural Investment programs.

Period British society is replete with such clubs and societies. The pro-science Royal Society, who can count the likes of Sir Isaac Newton among its presidents, is one example. Founded in early 1720s Scotland, the Honorable Society of Improvers also received some state funding to support its Board of Trustees.

Despite its muscular-sounding name, Arthur Young’s Board of Agriculture was nothing like a foreign state-owned bank or investment fund, airline, university, weapons manufacturer, utility, telecom, or extraction industry. It can no more be meaningfully considered a “foreign state” entity than Washington’s advice-seeking missive to an old friend and fellow traveler in the world of agriculture can be considered a “business transaction.”

There is still to be investigated the matter of the unseemly, secretive aspect with which Kontorovich characterizes Washington and Young’s correspondence. Is it the case that Washington, in this letter, is stealing with baby steps around a potential Foreign Emoluments Clause land mine?

No. The letter itself plainly accounts for any hush-hush tone to be detected in Washington. Had Kontorovich examined it more fully, in historical context, he would have seen it himself.

Washington writes,

By a law, or by some regulation of your government, Artizans [sic] I am well aware, are laid under restraints; and for this reason I have studiously avoided any overtures to Mechanics although my occasions called for them — But never having heard that difficulties were thrown in the way of Husbandmen by the Government, is one reason for my bringing this matter to your view.

Great Britain at the time zealously guarded its industrial secrets and its skilled domestic work force: the inventions and knowledge base that had propelled it, especially its native textile industry, to incredible heights of sophistication and economic domination.

For instance, as early as 1718, parliament acted to keep British wool workers from emigrating and passing on their practices and expertise. Those convicted of the crime would lose all their property and even their citizenship. Foreigners caught trying to lure such artisans to distant shores were subject to fines of £100 and a three-month prison sentence.

Washington was fully cognizant of this state of affairs. His light touch with Arthur is self-explanatory, then. He simply did not know if Britain had similar laws for farmers, and made pains to avoid offense had that been the case.

Even all these considerations may, in the end, not matter.

When Arthur Young responded to Washington (which was not until June 2, 1794) he reported himself to have come up empty-handed in the prospective farm tenant department. Although Young avowed detecting some interest in his compatriots on the issue of American land ownership, potential matches for the Mount Vernon properties-to-let were discouraged by the high prices of sailing to America.

This “precludes my taking any publick step to procure such tenants as you describe,” he wrote.

So not only was Washington and Young’s correspondence not a “business transaction” with a foreign state entity, no possible item of value, benefit, or advantage ever changed hands.

Again, those striving to undermine the applicability of the Foreign Emoluments Clause to President Trump have succeeded in wooing editors to publish research that is fundamentally flawed, and that just a little poking through archives can thoroughly dispel.

George Washington can rest easy that his reputation for complying with the Constitution remains quite what it has been for generations. The rest of us, unfortunately, cannot rest easy. When publications and media outlets wring their hands over perceptions of fairness and balance, and reach into the void for minority opinion on a matter of public importance no matter how arcane, a Koch Brothers network spokesperson will always be ready to offer up free and convenient content. What they clearly won’t always be ready to offer up, though, is research that can actually withstand historical scrutiny.