Acceptance of Foreign Employment by Retired Military Personnel

• Author: By Major Joseph P. Creekmore
• Pages: 04

This article disciwses the applicability of constitutional provisions and ereeiitive opinzons to cmplozjment oppor-tunities for retired militevu personnel. These provisionsam historicallzj developed, analgmi and explained. The author concludes that these provisions weTe made applz-cable to retired militarv peraonnal bzi mistake, and that!keg shouid he amended to ezciude them from their re-StruCtiOrlS.

I. INTRODUCTION

Article I, section 9, clause 8, of the Constitution of the United States af America provides:

No Title of Tobiiity rhall be granted by the United Stater: And no perron holding any Office or Profit or Truir under them. shall without the Consent of the Congress. accept of any present. Emolu. ment, Offiee, or Tlfie, of any kmd vhatewr. from any King, Prince, or foreign state.

It has been stated that "this clause is of little practical importance. Apparently it has never been construed by the Supreme Court of the United States, as no litigation has arisen under it. . . ."

Nevertheless, because of various interpretations placed on these words by officials, that portion of this eiau~e proriding that:

[Nlo perion holding any office of Profit 01 Tmat under them, ehali withour the consent of the Congresr, accept of any present, Emolument, Office. or Title. of any kmd ahatmer. from any Kmg,

is of \,ita1 importance to retired members of the military farces of the Cnited States. Such official opinions have influenced ad. ministrative offices to hold that Executive Order Number 6221

'This article wsb adapted from B thesis presented to The Judge Advo-cate General's Schaai, U.S. Army, Charlottesville, Virginia, vhiie the author was a member of the Sixteenth Advanced Course. The opin~ona and eonelu6iona prerented herein are those of the author and do not news. sarily repreeent the v i e vôf The Judge Advocate General's School or any other governmental agency.

**JAGC, US. Army; Staff Judge Advocate, Edgewood Arsenal. Paw- land; LL.B., Umuersity of Ilorth Carolina. 1962; member of the Bar of North Caralina.

Pnnee, or foreign state.

'E. D L P B A ~ D , TEE CONSTITUTION OF TBE UNITED STATES 211 (1964).

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pertains to a sizable portion. if not all. of United States reiired military personnel. This Order provides :

It 10 bereby ordered that no officer or emplasee in the Execotiie braici of the Umted ftafei Governmert regardle-r of uhethe, he

IS on ~rnual leaie or ,eale xitiour pa^, shall be employed with UTwithout remuneration by any foreign eovernment. eorporatias. part-nershq or lndivldur.1 ~n eompet~tiun with American IndLrtry'

The application of this order and the above proridion of the Constitution is the subject of this paper.

I1 HISTORICAL BACKGROVSD OF ARTICLE I, SECTIOX 9. CLAUSE 8, OF THE CONSTITUTIOS

OF THE USITED STATES

The fountainhead of article I, section 9. clause 8, of the Constitution of the United States appeared in the Articles of Confederation as section 1 of article VI, which provided:

prmee, or stare. nor ihall any person holding any office at profit or :rest uder the United States 01 any of them. accept af any present emolumerl. office. or title of ary kind whatever. from anyKing, prince. 01 foreign State. nor shall :he Cnired Ststee in Can-greri assembled. or .&y of then. grant any title of Kobhtg.'

This section of the Articles was inserted by ihe framers, not from any apprehension of usurpation. but to insure gieater security for the United States by preventing corruption.' During this period of history, there prevailed among European sovereigns the cuetam of bestowing presents of jewelry or other articles of pecuniary value upon the minister of a power with which a treaty \vas negotiated. This same practice was follo\%-ed upon the termination of a minister's mission In England, it was customary for the King to offer a minister, at his option, a sum of money, gladuated according to his rank, or a gold box or other trinket of equal "alue.~

The perpetual union sought to be established by the Articles of Confederation failed to become a reality. On 12 February 1787,

'Sea A-ations1 Archives, 16 WAR DEP'T BULL (6 Dec. 1929) See a l ~ o

W P A Hirtoncsl Records Survey, PRESIDEX-IIAL U E c u ~ l i E ORDERS 436 (1944).

FOREIGN EMPLOYMENT

Congress calied for a convention to propose for the states a constitution adequate to the exigencies of government and the preservation of the union.'

Among the delegates to the Constitutional Convention was Benjamin Franklin of Pennsylvania, who had returned to America in 1786 after an absence from America of almost nine years. During his European stay he served as diplomatic representative for the Continental Congress in tmrious pasts, including Paris and London, where he acted as a member of the Peace Commission. While in Europe, Dr. Franklin fell into disfavor with such American's as John Adams; Arthur Lee.' and Ralph hard.'" Upon his departure from France in June of 1785, Franklin was presented by the French Government with a minature snuff box,encrusted with 408 diamonds, containing a portrait of King Louis XVI." Franklin fully expected Congress to reward him with at least a tract of land for the services he had rendered in Europe, and he became embittered when Coneresa failed to do so.'* Reports were circulated in the states that Franklin was indebted to the United States for large sums received from European allies and that he had refused to turn these sums over to the Congress." Delegates to the Constitutional Convention from both Xassachusetts and Tirginia thought Franklin was too fond of France.'*

For more than tvo months, as the Constitutional Convention debated various proposals, the only portion of what is now-aiticle I, section 8, clause 9, considered by the Convention was the provision that "The United States shall not grant any title of Nobility." This provision appeared as section 7 of article VI1 of the draft submitted to the Convention by the Committee on Detail." On 23 August 1787, after the Convention had parsed

' 1 ELLlOT'l DEBATES 120,*VAS DOREX, BEXIAMIF PRIZIKLIN 600, 622, 624, 725 (1967) [hereafter eired BI YAX DORPX].

"Id. at 601, 766.

"Id.

"Id. at 722 M. FULRABD, 3 THE RECORDS 0s THE FEDERAL

CONYETTIOF 327

"VAS DOREN, mpro note 8 at 766. At the time af his death m 1790, Franklin's fortune exceeded $200,000.00. In disposing of his estate, he inserted a clause in his will which provided that the miniature of Louis XVIaavld go to his daughter. along with a request "that ahe would not form any of those diamonds into ornaments either for herself or daughters. and thereby introduce or eo~ntensnce the expensue, vain. and uiele~s fashion of wearing lewd8 in this country. . ." Id. at 761, 763,

Id. at 764.

Id. at 765.>I. FARR(ND, 2 THE RECORDS OF THB FEDERAL CONVEXTION 188 (1811).

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(1911).

the proposed article VII, section 7, MI. Charles Pinckney urged the necessity of preserving foreign ministers, and other officers of the United States, independent of external influence, and moved to insert, after article VII, section I, the following clause:

[Nlo person holdng any offiee of trvrt or profit under the United Stater. shall, without the conaent of the legislature, accept of m y p'esent, emolument, office or title. of any kind whatsoever. from anyKing, pnnee. or foreign state."

Mr. Pinckney's motion was passed."

Governor Edmund Randolph, a delegate to the Constitutional Convention from Virginia, attributes the passing of Mr. Pinck-ney's motion to the "accident" of Franklin's receiving the miniature snuff box from the King of Fran~e.'~

In diecussing the matter before the Virginia Convention on 17 June 1778, Governor Randolph stated :

This restriction is provided to prevent corruption. Ail men have a natural inherent right of receiving emoluments from any one,unless they be restrained by the regularionb of the community Anaccident uhich actually happened. operated ~n producing the restrict m A box was presented to our ambainador by the Xing of ourallies. it w83 thought proper, in order to exclude corruption and foreign infiuenee, to prohibit any one in office from receiving or haiding any emdumenf from foreign states. I belieie, that if at that moment, rhen we w e ~ e in harmony wich the Xing of France, we had mppo& that he vas eorrnpting our ambaesadar, i c mighr have disturbed rhar confidence, and dmmished that mutual friendship, which contributed to carry UP through the war. . . :*

It thus appears that the framers of the Constitution considered this provision applicable primarily to diplomatic represent-ntives and persons holding active office subject to be influenced by foreign emissaries accredited to our government.:' Joseph Story in his commentaries on the Constitution expresses the belief that the prohibition:

111s founded in a iust ieaimiv of fareien influence of even sort.

.. . . .

Dlr. Pinekney's motion used the tern "legislature" rather than "Congma" as was finally spprned. Also, in the fins1 document his rewrial of the phrase ''office of trust or profit'' was changed to eonfarm with the Articles of Confederation where the phase appeared as "office of profit 01

FOREIGN EMPLOYMENT

Whether, in B praetieal aense, it can produce much effect, has beenthought doubtful. . . . Stili, however, the provision ie highly import-ant, a3 it puts it out ai the power of any officer of the government to wear borrawed honors, which shall enhance his supposed impart- nee sbraad by a Titular dignitary at hame. . . ?

Indeed, throughout the first one hundred years of this nation's existence it was considered that this prohibition was designed primarily to control the activities of our diplomatic officials?* and a proposed constitutional amendment, recommended by Congress, to establish a similar general prohibition against any citizen whatever, whether in public or private life, accepting any foreign title of nobility, failed to receive ratification by the requisite number of states, probably because such action was deemed wholly...