2d Session.

No. 120.

COLONEL JOHN HARDIN-HEIRS OF.

[To accompany bill H. R. No. 783.]

FEBRUARY 23, 1855.

Mr. FAULKNER, from the Committee on Military Affairs, made the fol

lowing

REPORT.

The Committee on Military Affairs, to whom was referred the memorial of the heirs of the late Colonel John Hardin, have, according to order, had the same under consideration, and submit the following report:

The history of a man so noted as was Col. John Hardin is so well known to the people of this country, to which he extended so much of his devotion as to sacrifice his life in its service, as to preclude the necessity of the committee going into any minute detail of his career and services. Previous to the expedition in which he was killed, he was an ensign in a militia company in the memorable expedition, in the year 1774, of Governor Dunmore, of Virginia, against the Indians; he was afterwards one of a company commanded by Captain Zack Morgan, during an engagement of which with the Indians he was wounded in the groin by a ball, which was never extracted to the day of his death. Still suffering from the effect of that wound, he was with Governor Dunmore on his march to the Indian towns. He next joined the regular army, with the command of a second lieutenant; he was then attached to Morgan's rifle corps, and was principally on the lines until he resigned a first lieutenant's commission, in 1779, occupying always, during his last service, a high place in the regard of General Daniel Morgan. After performing many gallant deeds in these and other positions, which deeds illustrate the pages of American history, he left the army, and went to Kentucky during the next year, 1780, located some land warrants, and afterwards returned to his old home in Virginia, and removed his family to Kentucky in 1786. He was afterwards quartermaster in the Wabash expedition, under General Clark. In 1789 the numerous depredations committed by the Indians in that locality induced him to cross the Ohio, with a strong band of militia, which had a warm engagement with a band of Shawnee Indians, who were defeated; which caused the suppression of depredations in that vicinity after that time. In fact, he was in every Indian expedition which was formed after his arrival in Kentucky, except that of General St. Clair, which he was prevented from joining on account of his having accidentally wounded himself.

In 1792, the hostile Indians northwest of the Ohio became so troublesome, and committed so many outrages, that it was the policy of the government to make peace with them, if possible. In order to do this, it was necessary to find a man of more than ordinary courage, firmness, and sagacity, to be the bearer of the white flag, or, in other words, the messenger to invite them to peace. Colonel John Hardin was selected by General Wilkinson, then the commander at Fort Washington, for the reason, as the General says himself, in his letter, "I wish you to undertake the business, because you are better qualified for it than any man of my acquaintance." Notwithstanding the expedition was looked upon as almost certainly fatal to the undertaker, it was not in Colonel Hardin to evade the performance of a mission the success of which would be of such incalculable advantage to his country. The last letters received from Colonel Hardin previous to his death show that he himself had little hopes of returning to the bosom of his family. In the very last letter that he wrote, he says: "But oh, my dear love, as I write and meditate on myself, to think I have left a peaceful, safe, plentiful, and so dear a family, and thrown my life into the hands of a cruel and savage enemy, I cannot prevent the tears flowing of my eyes at present." He had indeed thrown his life into the hands of a cruel and savage enemy; for, says Marshall's History of Kentucky, "towards the close of the year, what had been apprehended with great anxiety, the death of Col. John Hardin, who had been sent with overtures of peace to the Indians, was reduced to a certainty. The particular manner of that death has not been ascertained with any certainty of detail. What has been learned is, that Colonel Hardin, attended by his interpreter, on his route toward the Miami villages, arrived at an Indian camp, about a day's journey from where Fort Defiance was afterwards built by General Wayne, and nearly the same distance from a town inhabited by Shawnees and Delawares; that he was well received by the Indians in camp, but had not been long there before five Delawares came in from the town; upon learning of which, the Colonel proposed to them to go with him the same evening to the place. They, however, refused to go back that day, but seemed peaceably disposed, and he concluded to camp with the Indians the ensuing night, which he did without molestation. In the morning, however, without provocation or particular reason, a parcel of them shot him to death. They seized his horse, gun, and saddlebags, expecting, no doubt, in addition to the two former, that they would find money and presents in the latter. His companion they made a prisoner, and, taking him with them on the road towards Sandusky, murdered him by the way." Thus terminated the career of this remarkable man.

His heirs now come before Congress, claiming the sum of two hundred dollars per annum, from the date of his death, in 1792, to that of his widow in the year 1829.

This claim is founded upon a promise made by General Wilkinson to Colonel John Hardin, the information of which promise is conveyed to his wife in the letter before alluded to, written just previous to his departure on the mission which ended in his death. In that letter he says: "Should I fall a sacrifice in this important attempt, the General

has promised me to be your steady friend, and that your yearly supply from government shall not be less than two hundred dollars during your natural life." The original of this letter, as well as others written by Colonel Hardin, were exhibited in the committee room by the Hon. Richard H. Stanton, of Kentucky, and copies thereof are filed with the papers.

The high character of Colonel John Hardin as a man of honor, whose werd was his bond, precludes the suspicion that he would have thus written to his wife, if General Wilkinson had not made him such a promise, and satisfies the committee that the promise was made, and that the government was obligated to pay his wife the amount stipulated during her nåtural life.

Indeed, the previous legislation of Congress would seem to indicate a disposition upon the part of the government to recognise such an obligation as that made known in the letter of Colonel Hardin, although they may not then have been apprised of the precise extent of that obligation, (as the letter referred to was not known to his children until within the last twelve years ;) for, on the 27th of February, 1793, an act of Congress was approved, giving to his widow and orphan children the sum of four hundred and fifty dollars per annum for seven years. This action of Congress less than a year after the confirmation of his death, when the facts of the case must have been fresh in the public mind, proves conclusively that the government at that time fully appreciated the duty it owed to the widow and children of Colonel Hardin. Again, in the year 1800, when the provision made for them under the previous act had ceased-in fact, but one month after the annuity provided for had been stopped under the limitations of the act-Congress again acknowledged the obligation due by the government to the heirs of Colonel Hardin, by passing a law giving to each of his sons and daughters the sum of one hundred dollars per annum until they shall have respectively attained the age of twenty-one years; the last payment under this act having been made on the 23d of March, 1812, up to which time the widow and children had received, in the aggregate, the sum of five thousand five hundred and twenty dollars and ninetyfour cents.

The committee is not of the opinion that the obligation of the government to the widow and children of Colonel Hardin was exhausted by the provisions of the two acts mentioned. General Wilkinson promised Colonel Hardin, that, in the event of his fall, his widow should receive not less than two hundred dollars per annum during her natural life. Has this been done? Clearly not; for the sum of two hundred dollars from the date of his death to the end of her life, would have amounted to seven thousand four hundred dollars, whilst the amount paid to the widow and children, in all, only amounts to the sum of five thousand five hundred and twenty dollars and ninety-four cents. The government at the time of the passage of those acts was poor; it could not fully satisfy all of its obligations; it showed its high degree of estimation for the services of Colonel Hardin by doing what it did for the widow and children, but it has never fully cancelled the obligation which was clearly due by it to them.

That said board, on the 23d day of March, 1848, ordered that the petitioner go into proof of priority of invention, as between him and Obed Hussey, esq., who, about the same time, had appeared before the Commissioner of Patents for the purpose of filing an application for the extension of a patent for a reaping machine, granted to him on the 31st day of December, 1833; and who, it appears, did not file his application for the same in time to give the sixty days' notice required by law, and who, therefore, was compelled to abandon such application, and thereupon appeared before the board in opposition to the extension of the patent of the said Cyrus H. McCormick.

That such order of the board was based upon the fact that the patent of the said Hussey bore date previous to the date of the petitioner's first patent, and thus, prima facie, said Hussey appeared to be the first

inventor.

That testimony was thereupon taken, in compliance with the order of the board; and by the proof submitted on the part of said McCor mick, it appeared conclusively that he invented his machine, and first practically and publicly tested its operation, in the harvest of 1831. That no proof on the part of the said Hussey appears to have been submitted to the said board, as to the date of his said invention; but from the exhibits referred to your committee, it appears that his machine was first constructed and operated in 1833. (See exhibit 17.)

That on the 29th day of March, 1848, the said board decided against the extension of the petitioner's patent; reasons for such action on the part of the said board being set forth in exhibit marked D, being a letter of the Hon. Edmund Burke, late Commissioner of Patents, to Senators Douglas and Shields, under date of March 4, 1850, viz:

"GENTLEMEN: Your letter of March 1st instant has been duly received; and in reply to the inquiries which it contains, I have the honor to state the grounds on which the board for the extension of patents under the 18th section of the act of July 4, 1836, reorganizing the Patent Office, declared to extend the patents of Obed Hussey and Cyrus H. McCormick, for reaping machines; they are as follows:

"1st. In relation to the patent of Hussey, if my memory serves me, his patent expired some time within the latter part of December, 1847. During that month, and within some ten or twelve days before the expiration of his patent, he applied to me, as Commissioner of Patents, for an extension. I informed him that inasmuch as the act of Congress prescribed the mode in which patents should be extended; required a reasonable notice to be given to the public in sundry newspapers, pub lished in those parts of the country most interested against such extension; and as the board had decided that 'reasonable' notice should be a publication of the application for extension three weeks prior to the day appointed for the hearing, there was not time to give the required notice in his case; and I advised Mr. Hussey not to make his applica tion, and thus lose the fee of $40 required in such cases-as he inevita bly would, without the least prospect of succeeding in his application— but to petition Congress for an extension, which body had the power to grant it. This is all which I, as Commissioner of Patents, had to d with Mr. Hussey's application.

"2d. As to the case of Mr. McCormick, during the same winter, (of 1847-48,) and after Mr. Hussey had applied to me for the extension of his patent, Mr. McCormick made application in due form, and in season, for the extension of his patent, which was granted in June, 1834, and consequently expired in June, 1848. Due notice was given; and on the day appointed for a hearing, Mr. Hussey appeared, to contest the extension of McCormick's patent. And on examination of the records of the Patent Office, and a comparison of the two patents, it appeared they both covered one or more features substantially identical in principle, but not the same precise combinations. And inasmuch as Mr. Hussey's patent bore date before McCormick's, the board decided that he was prima facie the inventor of the feature, or rather claim, which conflicted. But Mr. McCormick contended that he invented the part of the machine embraced in both patents, one or two years before Hussey obtained his patent, and was, in fact, the first and original inventor; and he prayed for a continuance of the hearing until he could take testimony upon that point to sustain his right.

"His request was granted, and he was ordered to take testimony, with due notice to Mr. Hussey.

"He complied with the orders of the board; but on an examination of the testimony on the next day of hearing, it was found to have been informally taken, and therefore ruled out.

"Mr. McCormick subsequently made efforts to supply the defects, but never did satisfactorily to the board, and they declined extending his patent. Such is a brief history of the proceedings before the board of extension on McCormick's application.

"I will now give my views with regard to the merits of the invention itself. I do not hesitate to say that it is one of very great merit. In agriculture, it is in my view as important, as a labor-saving device, as the spinning-jenny and power-loom in manufactures. It is one of those great and valuable inventions which commence a new era in the progress of improvement, and whose beneficial influence is felt in all coming time; and I do not hesitate to say, that the man whose genius produces a machine of so much value, should make a large fortune out of it. It is not possible for him to obtain, during the whole existence of the term of his patent, a tenth part of the value of the labor saved to the community by it in a single year. Therefore I was in favor of its

extension.

"There were, however, other reasons which induced me to favor its extension. One was the fact that the machine was one which could be used only a few weeks in each year. Therefore, for want of an opportunity to test it, its perfection must be a work of time and tediousness. It is not like the steam-engine and other machines in common use, upon which improvements may be at any time tested. Therefore the invention and perfection of a reaping-machine must be a work of slow progress.

And such was the case with McCormick's machine. He was many years experimenting upon it before he succeeded in making a machine that would operate, as the testimony before the board (although informal) clearly proved. In the next place, it is a machine which was difficult to introduce into public use. It was imperfect in its operation