The Office of Foreign Affairs was one of the four executive departments established by Congress in 1781 to correct the inefficiencies that had characterized its conduct of the war effort. Though confronted with a severe financial and military crisis, Congress very reluctantly decided to confer authority and decision making on individuals, as it sought to avoid any possibility that executive power would be abused. The Office of Foreign Affairs was the first department it created. Its resolution of 10 January 1781 recognized the need for a foreign affairs minister “vested with Confidential powers” like those in other nations and “responsible for his Trust” to remedy “the fluctuation, the delay and indecision” that characterized its current conduct of diplomacy. Although it rejected a motion to establish a three-member committee to supervise and direct the secretary, it required him to submit all his correspondence and proceedings to its inspection and stipulated that he should be “under the immediate Direction of Congress.” His duties included keeping and preserving records, receiving and reporting the applications of foreigners, corresponding with the ministers of foreign powers to obtain information about foreign affairs “to be laid before Congress when required”; and transmitting Congress’s communications to American personnel abroad. He was allowed to attend Congress to inform himself about its concerns and to enable him to explain his reports and was authorized to appoint one or more clerks.1

Congress clearly did not, however, intend him to serve as an architect of its foreign policy. Its course was also subject to intense if discreet pressure from the French minister to the United States. Before Robert R. Livingston, the first to hold the position of Secretary for Foreign Affairs, took office on 20 October 1781, Congress had already agreed to modify its peace commission and to require its ministers to seek the advice of the French court on all significant aspects of the peace negotiations, a requirement Jay considered inappropriate and later decided, in conjunction with the other peace commissioners, to set aside. Livingston expressed his strong disapproval when notified of the commissioners’ decision.2

La Luzerne, who had engineered Livingston’s appointment, informed Vergennes that, while his communications with Congress would ordinarily pass through Livingston, Congress had reserved to itself the right of conferring with him directly when it “deemed proper,” and that he retained the right to ask to confer with Congress when he chose. In either case, he said, it would be up to him to inform Livingston about the substance of these discussions or not.3

Livingston did not seek to restrain French influence and was not aggressive in asserting control over his department. In February 1782, Congress modified the rules that defined how its foreign affairs would be conducted. It confirmed the secretary’s custody of the documents pertaining to his department but gave its members unfettered access to them on condition that they did not copy secret materials without its permission. It specified that letters to American diplomats and ministers of foreign powers on important public business were to be submitted for its approval before they were sent. It also empowered the secretary to correspond with the states on matters relative to his department, and to receive applications of foreigners. It restricted his freedom to attend Congress at will and provided he might do so only if summoned by the president or on his own written request. In addition to his clerks, Livingston was allowed to appoint an assistant and a secretary.4

Livingston resigned and vacated the Office of Foreign Affairs in June 1783. Its papers were entrusted to the care of Charles Thomson, who kept them locked despite the wishes of some delegates to inspect them.5 Of necessity, Congress became more directly involved in the business of foreign affairs while the department had no executive officer.

Jay was elected Secretary on 7 May 1784, but did not learn of his appointment until he arrived at New York from abroad on 24 July. Before accepting the post he sought assurances that Congress would remain in one place, preferably New York, and that, as Livingston had, he would have the privilege of picking his own staff. On 15 December, a committee of Congress chaired by Livingston reported resolutions that confirmed Jay’s rights to appoint his staff, set his salary, and restored control over the department’s papers to him the moment he took office. Trusting that Congress would fulfill its promise to relocate to New York City, which it did on 23 December, Jay resigned his seat in Congress and took the oath of office as Secretary for Foreign Affairs on 21 December 1784. The following day, he informed French chargé d’affaires Barbé-Marbois that he had accepted the position and that Congress had adjourned and would reconvene in New York on 11 January 1785. He appears to have begun to devote full attention to the business of his office by the date of his letter of 23 January, below. In his circular of 29 Jan. 1785 announcing his appointment, below, Jay reported that the office had opened the previous day. As Jay’s January correspondence shows, Barbé-Marbois immediately called his attention to a series of matters left pending by Congress’s recess and by the resignation of Robert Morris as Superintendent of Finance, which left Jay as the only one of the four executive officers appointed by Congress actually in place.6

Actions recently taken by Congress soon alerted Jay to problems likely to arise in their relationship.7 On 15 December, a committee chaired by James Monroe had reported instructions to the secretary for foreign affairs about how to respond to correspondence from Barbé-Marbois and from Francisco Rendón. Subsequently, Congress received letters from the American ministers abroad detailing French and Dutch concerns that Congress would default on interest payments. It established a committee, also chaired by Monroe, to determine what parts of them should be communicated to the states. The committee reported on 19 January, and the letters were sent to the governors of the states under cover of a circular letter from the president of Congress of 21 January instructing the recipients to keep their contents secret.8

Jay was determined to reclaim the powers Congress had assigned to the Secretary for Foreign Affairs on 22 February 1782. In his letter of 23 January (below), he stated plainly that if Congress’s views could not be reconciled with his own, he would resign. His letter was referred the next day to Monroe’s committee. To prevent any misunderstanding about his position, Jay provided Monroe with a report (not found) for the committee “to adopt & hand into Congress, stating that the committee was of the opinion that the secretary of foreign affairs should be the one to transmit any foreign intelligence Congress wanted to communicate to the governors of the states and that any foreign letters or papers laid before Congress should “in the first instance be referr’d to him.” Monroe, who had not been a member of Congress when it determined the powers of the secretary for foreign affairs, had a much more restrictive view of them. Congress, he remarked to John Francis Mercer, should “consult or not consult” its servants “at pleasure & make them respectful & obedient to the orders they receive.” On 1 February, apparently suspecting his opinion might not prevail, Monroe commented to Madison that it remained to be seen whether the committee would “consider the offices in a different point of view, consulting him when necessary & referring or declining to refer to him, at pleasure, any of the subjects before them.”9

Jay did not wait for the committee’s findings. On 29 January, he sent out his own circular to the governors of the states (below) in which he cited Congress’s resolution of 22 February 1782 that empowered him to correspond with them. Forced to choose, Congress adopted Jay’s position. On 11 February 1785, it resolved that “all communications as well to as from the United States in Congress assembled, on the subject of foreign affairs, be made through the secretary for the department for foreign affairs, and that all letters, memorials or other papers on the subject of foreign affairs, for the United States in Congress assembled, be addressed to him.” The resolution also provided that Jay’s office should translate all papers in a foreign language before transmitting them to Congress, and it authorized the secretary to appoint a translator not only for his own department but also for committees of Congress, its secretary, the Board of Treasury, and the Secretary for the Department of War.10 Jay’s powers as a true executive officer were, thus, reaffirmed.

In the approximately five years he served as Secretary for Foreign Affairs Jay organized the Department of Foreign Affairs and its papers11 and confronted issues of major significance, among them expansion of American commerce with Europe and Asia’s mercantile powers, navigation on the Mississippi River, implementation of the terms of the peace treaty by Britain, depredations by the Barbary powers, renegotiation of a consular convention with France, and resolution of the Longchamps affair. A constant presence while Congress was weakened by poor attendance, he would be the most visible representative of the government of the United States until the United States Constitution was ratified and a new government was in place.12