American counterintelligence efforts against these Tory operations were conducted under the auspices of the "New York State Committee and Commission for Detecting and Defeating Conspiracies," which Jay headed until mid-February 1777. While in this post, he conducted hundreds of counterintelligence investigations, arrests, and trials. Most of the suspects were influential businessmen and political figures with longstanding ties to the Crown.
Jay also stationed prison ships on the Hudson River to house the more dangerous of the loyalists arrested by American forces. The "Committee and Commission" investigated, tried, and sentenced suspects outside the established legal system. In May 1777 Jay proposed that civilian courts be established to handle cases of treason, insurrection, and violation of oaths of allegiance. He maintained that such courts would conduct more objective investigations and trials than those that had prevailed under the "Committee and Commission." Subsequently, however, American military courts gradually took over the judicial process for such cases.
Jay employed at least ten counterintelligence agents in conducting his investigations. Among the better known of these operatives were Nathaniel Sackett, Elijah Hunter, and Enoch Crosby. Elijah Hunter was Jay's favorite agent. Hunter supervised a network of counterintelligence agents operating in the Fishkill area. He later worked for the American side as a spy and double agent in New York City.
Enoch Crosby was perhaps the best known—and the most successful—of Jay's agents. His reputation stemmed to a considerable degree from a widely held belief that he was the model for "Harvey Birch," the protagonist in James Fenimore Cooper's novel, The Spy. After the war, Jay and Cooper did discuss the exploits of Jay's counterintelligence agents in the Fishkill area, but Cooper seems to have modeled Birch after a composite of several agents, not Crosby alone.
Crosby, a shoemaker, worked for Jay from August 1776 until spring 1777 in the Fishkill area. During this time he joined various Tory groups, gathered evidence on their pro-British activities, and then passed to Jay the specifics that were necessary to have these people arrested and convicted. While penetrating the groups, Crosby used aliases such as John Brown, John Smith, Levi Foster, and Jacob Brown. He invariably managed to "escape" just as a group was captured. Crosby also was sent on missions to identify pro-Tory groups and individuals in New York City and Vermont.
Crosby's missions were highly dangerous. He was in constant danger of being killed by the Tories if unmasked as an American agent, or harmed by unwitting Americans when captured along with Tories. The geographical area in which he operated along the Hudson River, north of New York City, was a small region, with residents clustered in several villages. The physical and social proximity among the populace meant that Crosby became widely known in the region rather quickly. As a result, his value as a counter-intelligence agent diminished with each mission.
In October 1777, Jay dispatched Crosby on a mission to the town of Marlboro, located on the western bank of the Hudson River. This mission typified Crosby's operational approach and the dangers he constantly faced. He posed as John Smith, a shoemaker and pro-British loyalist. Upon arriving in Marlboro, he sought out a tavern known for its loyalist patrons and began getting acquainted with the local Tories.
Crosby's skillful performance as a British sympathizer impressed some influential local people. As "Smith", he was welcomed as a recruit in a military unit being formed among local Tories under the direction of a British officer from New York City. The company was formed in a week's time. Crosby soon sent the following message to Jay:
I hasten this express to request you to order Captain Townsend's company of Rangers to repair immediately to the barn, situated on the west side of Butter-Hill, and there to secrete themselves until we arrive, which will be tomorrow evening, probably about eleven o'clock; where, with about thirty Tories, they may find,
The trap was sprung by Townsend's Rangers as Crosby had suggested. Crosby attempted to hide in a nearby haystack to avoid capture and to be able to explain his future freedom. But the American Rangers probed the haystack with their bayonets, and he hastily gave himself up. Townsend, who was unaware of Crosby's true loyalty, took him along with the other Tories and decided to lock him in a secure room in Jay's residence. Jay was not home, but his maid recognized Crosby and managed to give the guards at the residence some drugged brandy so that he could flee. The next day, his "escape" was made known to the other prisoners, and Crosby was off to join yet another Tory group.
In addition to his counterintelligence work, Jay played a critical role in establishing the right of the Executive Branch to conduct intelligence activities in secrecy. During the debates surrounding the creation of the United States Constitution, Jay wrote in Federalist Paper No. 64:
There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives, and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular assembly. The convention has done well therefore in so disposing of the power of making treaties, that although the president must in forming them act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest.
Benjamin Franklin: Master Of Covert Action
Franklin used his intellect and humor to win friendships and build French support for the American independence struggle.