Sunday, May 28, 2017

"Emolument" in Blackstone's Commentaries

John Mikhail

The word “emolument” occurs sixteen times in William Blackstone’s Commentaries on the Laws of England.  Here is a list of chapters in which the term appears:  

Book I (Of the Rights of Persons)
1.      Introduction (“Of the Study, Nature, and Extent of the Laws of England”)
a.       Section IV (“Of the Countries Subject to the Laws of England”)
2.      Chapter VII (“Of the King’s Prerogative”)
3.      Chapter VIII (“Of the King’s Revenue”)
4.      Chapter XI (“Of the Clergy”)
5.      Chapter XVIII (“Of Corporations”)

Book II (Of the Rights of Things)
6.      Chapter III, #1 (“Of Incorporeal Hereditaments”)
7.      Chapter III, #2 (“Of Incorporeal Hereditaments”)
8.      Chapter V (“Of the Ancient English Tenures”)
9.      Chapter XVIII (“Of Title by Forfeiture”)
10.  Chapter XXI (“Of Alienation by Matter of Record”)
11.  Chapter XXXI (“Of Title by Bankruptcy”)
12.  Appendix No. II (“Modern Conveyance by Lease and Release”)
a.       Sect. 1 (“Lease or Bargain and Sale, For a Year”)
13.  Appendix No. II (“Modern Conveyance by Lease and Release”)
a.       Sect. 2 (“Deed of Release”)

Book IV (Of Public Wrongs)
14.  Chapter IV (“Of Offences Against God and Religion”)
15.  Chapter XVII (“Of Offences Against Private Property”)
16.  Chapter XXXIII (“Of the Rise, Progress, and Gradual Improvements of the Laws of England”

In their white paper on conflicts of interest, Donald Trump’s lawyers claimed that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.”  Since then, other commentators have also defended an “office-related” definition of the term (see, e.g., here, here, and here).

Blackstone does not support such a narrow reading.  Occasionally, he refers to the emoluments of government officials, such as postmasters, civil magistrates, and naval seamen.  But the significance of these public employment contexts must be interpreted cautiously, and on the whole they appear to be exceptional. The majority of Blackstone's usages of "emolument" involve benefits other than government salaries or perquisites.  They also reflect the broader meaning of the term—“profit, “gain,” “benefit,” or “advantage”—one finds in the principal eighteenth-century English dictionaries.

For example, Blackstone uses “emolument” in the context of family inheritance, private employment, and private ownership of land.  He refers to “the power and emoluments” of monastic orders; to “the rents and emoluments of the estate” managed by ecclesiastical corporations; and to the “pecuniary emoluments” which the law of bankruptcy assigns to debtors.

Blackstone describes the advantages to third-party beneficiaries of a gift as “the emolument of third persons.”  He uses “emolument of the exchequer” to refer to an increase in the national treasury.  Finally, in explaining the law of corporations, he characterizes “parish churches, the freehold of the church, the churchyard, the parsonage house, the glebe, and the tithes of the parish” as among the “emoluments” vested in the church parson.

A further illustration of the fact that Blackstone understood emoluments to relate to private commercial transactions can be found in the forms of “Conveyance by Lease and Release” that appear at the end of Book II of the Commentaries.  In the first of these forms (“Lease, or Bargain and Sale, for a year”), Blackstone suggests the following language for conveying parcels of land:

THIS INDENTURE . . . witnesseth, that [A.B. and C.]. . . have bargained and sold . . . unto [D.E. and F.G.] . . . the capital messuage, called Dale Hall . . . and all those their lands . . . called or known by the name of Wilson’s Farm . . . together with all and singular houses, dove-houses, barns, buildings, stables, yards, gardens, orchards, lands, tenements, meadows, pastures, feedings, commons, woods, underwoods, ways, waters, watercourses, fishings, privileges, profits, easements, commodities, advantages, emoluments, hereditaments, and appurtenances whatsoever to the said capital messuage and farm . . .”

Blackstone uses the same language in his second form (“Deed of Release”).  Both forms can also be found in his Analysis of the Laws of England (1756), published ten years earlier.  Yet Blackstone probably did not create these forms on his own.  Many form books and other legal manuals of the period included similar templates.  In Giles Jacob’s Law Dictionary (1729), for instance, which included not only a dictionary of legal terms, but also writs, case reports, and deeds and conveyances, one finds a “Form of a Release and Conveyance of Lands” with almost identical language, in which “A.B.” conveys to “C.D.” a piece of property together with “all . . . Easements, Profits, Commodities, Advantages, Emoluments, and Hereditaments whatsoever.”

When Americans bought and sold property during the founding era, they frequently referred to emoluments in their deeds and conveyances.  To take one pertinent illustration, on January 5, 1787, Francis Lewis, a prominent New Yorker who signed the Declaration of Independence and Articles of Confederation, placed a notice in The New-York Packet announcing the sale of land at a public auction, together with “all buildings, ways, paths, profits, commodities, advantages, emoluments and hereditaments whatsoever to the said messuage or tenement and lot of ground belonging.”  Lewis' advertisement ran throughout the spring and summer of 1787.  As with Blackstone’s and Jacob’s form contracts, the emoluments to which he referred were not government salaries or fringe benefits.  Instead, they were benefits that belonged to and ran with the land.

Two final points worth noting about Blackstone's understanding of "emolument" concern his last will and testament and his argument in Tonson v. Collins.  

By a clause in his will, Blackstone directed that his collection of case reports should be published after his death and that “the Produce thereof be carried to and considered part of my personal Estate.” Blackstone’s brother-in-law, James Clitherow, who served as his executor, fulfilled this obligation by publishing two volumes of Blackstone's case notes in 1781.  In his preface to Reports of Cases Determined in the Several Courts of Westminster-Hall from 1746 to 1779: Taken and compiled by Sir William Blackstone, Clitherow quoted the foregoing clause to explain why he was not at liberty to give away any of these volumes as a present.  Clitherow explained that “he [did] not think himself justified in doing so, as Trustee for the Author’s Children, to whose Emolument the Profits are specifically directed to be applied.”

In characterizing Blackstone’s profits in this manner, Clitherow may have had in mind Tonson v. Collins, an important copyright case which Blackstone argued before King's Bench in 1761 and which appears in the first volume of the Reports.  In summarizing his own argument in that case, Blackstone wrote: “No Man has a Right to make a Profit, by thus publishing the Works of another, without the Consent of the Author.  It would be converting, to one’s own Emolument, the Fruits of another’s Labour.”  Blackstone returned to this topic in the Commentaries, expressing similar ideas in different terms: "When a man by the exertion of his rational powers has produced an original work, he has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property." 

Based upon the foregoing considerations, it seems clear that Blackstone did not understand "emolument" in the restricted fashion advocated by Trump's lawyers.  Nor, it seems, did the founders themselves. The current deadline for the President to respond to the second amended complaint in CREW et al., v. Trump is June 9.  It remains to be seen what originalist or historical arguments, if any, the Department of Justice will make to Judge Ronnie Abrams, to whom the case is assigned.

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