Chapter 6

[Sidenote: McCormick's Attempt to Get Hussey's Signature]

Before, however, receiving the official notice, he was called on by C. H. McCormick in Baltimore, and requested to sign a paper, agreeing or admitting, that the testimony he had himself prepared should be considered evidence--i.e. considered formal; alleging that it would save him trouble and expense in going to Virginia. This was declined by Hussey on the ground that he might thus unwittingly injure himself; he having previously applied for an extension of his own Patent. Neither was he then aware of the nature of this evidence; or until this interview, was he advised of C. H. McCormick's application for extension.

Hussey was subsequently duly notified by order of the Board to be present at taking the depositions in Augusta County, Virginia,--the Board having adjourned three weeks for that purpose.

Either just previous or subsequent to these proceedings the case was referred by the Commissioner of Patents, or Board of Extensions, to Dr. Page, one of the Examiners of the office.

His report is as follows:

"Patent Office,

"Jan. 22d, 1848.

"Sir:

"In compliance with your requisition I have examined the patent of Cyrus H. McCormick, dated 31st June, 1834, and found that the principal features embraced in said patent, viz, the cutting-knife and mode of operating it, the fingers to guide the grain and the revolving rack for gathering the grain, were not new at the time of granting said letters patent.

"The knife-fingers and general arrangements and operation of the cutting apparatus are found in the reaping machine of O. Hussey, patented 31st Dec., 1833.

"The revolving rack presents novelty chiefly in form, as its operation is similar to the revolving frame of James Ten Eyck, patented 2nd November, 1825.

"Respectfully submitted,

"CHAS. G. PAGE, "Examiner.

"Hon. Edmund Burke, Com'r of Patents."

As some have enquired, and others may enquire, why a patent should issue under these circumstances, we reply, that previous to 1836 but little, if any, examination was made as to priority of inventions, or into preceding Patents; the applicant made oath as to his invention, and the patent was issued as a matter of course. And as another matter of course, if the rival interests clashed, litigation was the result:--the Courts and juries often decided what they little understood, and at times not at all, after the pleading of well fee'd lawyers; a pretty fair illustration of the fable of the boys and frogs; it may be _fun_ for the lawyers but it is _death_ to the hopes of many a poor patentee. We are, however, pleased to perceive a disposition manifested by the courts to sustain patents; even if occasionally an unjust claim is recognized as a valid one, it is better, according to the legal and moral maxim, that half a dozen rogues should escape punishment for a time, than that one innocent person should be unjustly convicted; the rogue is almost certain to be caught in the end, and truth will ultimately triumph.

[Sidenote: McCormick-Hussey Controversy]

This testimony was taken in due form at Steele's Tavern, Augusta County, Va., McCormick and Hussey both being present. It is too voluminous to copy entire, but we will refer briefly to each, having read them carefully, and obtained certified copies of all from the Patent office.

Dr. N. M. Hitt testified to a reaping machine being made by C. H. McCormick in 1831--it had a straight sickle blade.

William S. McCormick and Leander J. McCormick, brothers of C. H. McCormick, also testified to the making of a machine in 1831.

Mary McCormick, mother of C. H. McCormick, agreed in general with the testimony of her sons,--did not doubt but it was correct, "it appears familiar to me," but testified to nothing in particular.

[Sidenote: Testimony]

John Steele, Jr., was tavernkeeper at "Steele's Tavern," testified as to the year being 1831 or 1832. In his amended testimony, admitted that C. H. McCormick wrote the paper describing the machine for him to testify to; recollects little else about the machine than the straight sickle edge.

Eliza H. Steele refused to testify without first seeing a certificate previously signed by her; admitted that C. H. McCormick wrote it for her to sign; her testimony as to the year depended on the building of a certain house, on which the workmen put 1831.

John McCown--was a blacksmith--testified that _he_ made the "straight sickle blade," and that it was "a long, straight sickle" blade.

This was most singular testimony to found a claim of priority of invention on, and by which to invalidate another man's patent. There was discrepancy in the evidence as to the year of the invention; also whether the machine was intended for one or two horses; how the "fingers" were arranged, and whether of _wood_ or _iron_, _above_ or _below_, the "straight sickle blade." Two of the brothers--one at least who helped to make, if not also to invent this machine--testified that the plan or arrangement of the machine here sworn to, was changed in 1840, 1841, 1842, or 1843, they did not know which; from 9 to 12 years afterwards!

John McCown swears positively that he helped to build the machine, so far at least as to forge "a long, straight sickle;" but neither he, or a single one of the seven sworn witnesses, "_ladies_ and _gentlemen_," testify that the machine ever worked a single hour, or cut as much grain of any kind as would make a single sheaf![1]

[1] The reading of this testimony strongly reminds us of an anecdote related at the hustings in Virginia by that talented but eccentric character, John Randolph, of Roanoake, in a political canvass with an opponent, who promised what he would do for his constituents, if elected. Randolph told him he was like one of his overseers, a plausible fellow, but on whom little reliance was to be placed--and who, desiring to show what fine crops he had raised, exhibited a better tally board than the crop could justify. "I told him," said Randolph, "this is very good tally, John, but where's the corn? and I tell the gentleman, I don't want to see his tally, but the corn--the evidence of what he ever did to entitle him to a seat in Congress." The effect was electric, and the hustings rang with plaudits. Now we would say to C. H. McCormick, this is very good tally, John, but where's the Corn? The evidence that the machine ever cut a single acre of grain.

[Sidenote: "John Smith"]

In a long communication to Commissioner Burke in 1848, together with a list of sales and profits, C. H. McCormick states, and on oath, that he had exhibited his machine in 1840 or 1841 to a considerable number of farmers and _very satisfactorily_, though but one person could be induced to purchase--a Mr. John Smith we believe--and that up to 1842, _eleven_ years after the alleged invention, he had sold but two machines, and one of them conditionally. Again, in the _same paper_ he states, "but they failed to operate well," and had to be altered--in other words they would not work at all. Amongst others, he had applied to "the farmer of Virginia, Mr. Sampson," for a certificate as to the satisfactory working of the machine, but it was declined.

We are not surprised at this; for some 35 years ago we were personally acquainted with this "farmer of Virginia," and also with his mode of farming; and know that a machine of any kind to please him _must work_ and must also work "_well_." Richard Sampson was at that early day in this "age of progress," one of the best and most practical farmers in the "Old Dominion," and was not a man to be "caught napping," either at home or abroad.

The record shows that "on March 29, 1848, the Board met agreeably to adjournment--Present, James Buchanan, Secretary of State, Edmund Burke, Commissioner of Patents, and R. H. Gillett, Solicitor of the Treasury--and having examined the evidence adduced in the case decide that said patent ought not to be extended."

(Signed) "JAMES BUCHANAN, "Secretary of State.

"EDMUND BURKE, "Commissioner of Patents.

"R. H. GILLETT, "Solicitor of the Treasury."

This evidence, taken in due form, and certified to by the magistrates in Augusta and Rockbridge Counties, Virginia, was _not_ ruled out as informal, as we have seen it stated: but it was certainly laid before the Board; and was doubtless satisfactory both as to priority of invention, and in connection with Dr. Page's report, conclusive, "that said patent ought not to be extended."

We have also seen it stated that Hussey appeared before the Board of Extensions "to contest the extension of McCormick's patent."

[Sidenote: Mr. Hussey Acted in Self Defense]

We think injustice--and no doubt unintentionally--is here done to Hussey. Until the order of the Board was passed to afford him the opportunity to defend his rights, assailed without his knowledge, he was not aware of C. H. McCormick's application. As a matter of course he then attended, but stated in writing, and which is now on file, "I had no intention, neither had I any desire to place any obstacle in the way of the extension of C. H. McCormick's patent. But the course he has taken before your Board and before Congress has compelled me to act in self defense."

[Sidenote: McCormick Assailed the Hussey Extension]

Not so with C. H. McCormick; for when his claims were rejected by the Board of Extensions,--and most justly, as we think, in accordance with the evidence--_he petitioned Congress against Hussey's extension_: and to this most ungenerous, illiberal and unfair course, and of which Hussey was for years totally ignorant, C. H. McCormick may justly attribute this enquiry;--but for this, it had never been written. Our object is not to injure C. H. McCormick; but it is that justice may be done to another, whose interests and rights he was the first to assail.

If the foregoing testimony is not conclusive, as regards priority of invention in 1831 against C. H. McCormick, we think the evidence which follows--and which no one will pretend to call in question, or doubt--establishes the fact that the machine of 1831 was good for nothing,--not even _half invented_; and that the machine of 1841 was not much more perfect.

On page 231 of the Reports of Juries for the Great London Exhibition, and now in the Library of Congress, we find the following:

"It seems right," says Philip Pusey, Esq., M. P., "to put on record Mr. McCormick's own account of his progress, or some extracts at least, from a statement written by him, at my request."--[Pusey.]

"My father was a farmer in the county of Rockbridge, State of Virginia, United States. He made an experiment in cutting grain in the year 1816, by a number of cylinders standing perpendicularly. Another experiment of the same kind was made by my father in the harvest of 1831, which satisfied my father to abandon it. Thereupon my attention was directed to the subject, and the same harvest I invented and put in operation in cutting late oats on the farm of John Steele, adjoining my father's, those parts of my present Reaper called the platform, for receiving the corn, a straight blade taking effect on the corn, supported by stationary fingers over the edge, and a reel to gather the corn; which last, however, I found had been used before, though not in the same combination.

"Although these parts constituted the foundation of the present machine, I found in practice innumerable difficulties, being limited also to a few weeks each year, during the harvest, for experimenting, so that my first patent for the Reaper was granted in June, 1834.

"During this interval, _I was often advised by my father and family to abandon it, and pursue my regular business, as likely to be more profitable, he having given me a farm_. [Italicised by C. H. McC.]

"No machines were sold until 1840, and I may say that they were not of much practical value until the improvements of my second patent in 1845.

"These improvements consist in reversing the angle of the sickle teeth alternately--the improved form of the fingers to hold up the corn, etc.--an iron case to preserve the sickles from clogging--and a better mode of separating the standing corn to be cut. Up to this period nothing but loss of time and money resulted from my efforts. The sale has since steadily increased, and is now more than a thousand yearly."[2]

[2] "The sale has since steadily increased, and is now more than a thousand yearly." This was written in 1851, and by a little calculation, we can readily estimate the "yearly" profits. In the Circuit Court of the United States, at Albany, in the suit brought by C. H. McCormick against Seymour & Morgan, in 1850, for an alleged infringement of patent, it was proved on the oath of O. H. Dormon, his partner, and also on the oath of H. A. Blakesley, their clerk, that these Reapers only cost $36 to $37 to manufacture. By the same evidence, the sales averaged from $110 to $120 each machine; leaving a clear profit of at least $73. C. H. McCormick first received a patent fee of $30 on each machine, then three-fourths of the remainder in the division of profits. It would thus appear, if these figures are correct--and they are all sworn to--that C. H. McCormick realized full fifty thousand dollars clear profit annually, with a margin of eight to ten thousand dollars for commissions and bad debts in addition.

It would be just as conclusive and reasonable for the _father_ of C. H. McCormick to claim at this day priority of invention for his Reaper invented in 1816, "by a number of cylinders standing perpendicularly;" or for "the invention made by my father in the harvest of 1831, which satisfied my father to abandon it." This authority, high and official as all must admit it to be, [and italicised too, by the writer for a particular object,] clearly proves that the invention of 1831 was an abortion; for if the principle was effective to cut one acre of grain properly, any man of common sense knows that it was equally so to cut one thousand acres; but so complete was the failure that, "During this interval"--between 1831 and 1834--"_I was often advised by my father and family to abandon it, and pursue my regular business, as likely to be more profitable, he having given me a farm._"

Again, "No machines were sold until 1840, and I may say that they were not of much practical value until the improvements of my second patent in 1845." What these improvements were we are also informed: "These improvements consist in reversing the angle of the sickle teeth alternately, the improved form of the fingers to hold up the corn, etc.--an iron case to preserve the sickle from clogging, etc.--up to this period nothing but loss of time and money resulted from my efforts."

Nor is it at all surprising; for until improvements were added, invented and long in successful operation by others, the machine would not work, and consequently no one would buy.

[Sidenote: McCormick's Pen More Effective Than His Reaper]

This letter is the most perfect and complete estopper to priority of invention--not only for 1831, but to 1841 inclusive, if not to 1845, that could be _penned_. His _pen_ cuts a "cleaner swath," as we farmers say, than ever did his Reaper; and this letter at least is certainly C. H. McCormick's own "invention," which no one else can lay any claim to. Yet, strange as it may appear, he contended before the Board of Extensions in order to invalidate Hussey's Patent, that he invented a Reaping Machine nine years before! So has perpetual motion been invented a hundred times--in the estimation of the projectors; and by his own showing, and on oath, he sold but two machines up to 1842--one of them conditionally sold--being _eleven_ years after the alleged invention, and even they had to be re-invented to make them work, or use the previous inventions of others.

In this letter to Philip Pusey, Esq., M. P., C. H. McCormick admits that the Reel "had been used before," yet he includes it in his patent of 1834.--Both the specifications and drawings in the Patent Office conclusively establish the fact that James Ten Eyck _patented_ the reel or "revolving rack," or "revolving frame" in 1825, used not only to _gather_ the grain as all such devices are used, but by the knives attached to it, also intended to _cut it off_.

[Sidenote: Priority of the Reel]

Could it be contended that because _rockers_ are attached to a chair it is no longer a chair, or useful as a seat? Even "Mary McCormick, the mother of Cyrus," and "Eliza H. Steele, of Steele's Tavern, Virginia"--nay every woman and child in the country would tell you that it was then a _rocking_ chair--just as much a seat as ever--and Ten Eyck's was a Reel to all intents and purposes, but also a _cutting_ reel. It does not require the mechanical tact and skill of Professor Page to discover that "the revolving rack presents novelty chiefly in form, as its operation is similar to the revolving frame of James Ten Eyck, patented November 2d, 1825." It is certain the reel was no "novelty," either in 1831 or 1834, when patented by C. H. McCormick; _he_ tells us so himself; and it is most likely the father of C. H. McCormick also used a reel for his "cylinders standing perpendicularly, in 1816," and also for his other plan in 1831, and "which satisfied my father to abandon it." And it is equally probable that most of the "fathers" and the sons, who invented Reapers for a hundred years preceding the date of Hussey's patent, used reels;--indeed the reel seemed to be considered a _Sine qua non_ by many; most of the inventors we have any clear account of, resorted to the reel.

Hussey also used the reel in 1833--of course the reel and seat in combination--but only for a short period, as it was found quite unnecessary--an actual incumbrance with _his_ cutting apparatus, and soon laid it aside.

We will now examine another invention patented by C. H. McCormick, in 1847. We here assert and challenge a denial, that from 12 to 14 years after the alleged invention of a Reaper by C. H. McCormick in 1831, and from 9 to 12 years after the date of his patent in 1834 his _raker walked_ by the side of his machine, while Hussey's raker _rode on the machine as they always had done_ since his first machine that cut the grain like "a thing of life" in Hamilton County, Ohio, in 1833. Yet, in 1847, C. H. McCormick takes out a patent for the _raker's seat_! this _was_ a "novelty" and well worth a patent!

[Sidenote: The Raker's Seat]

In two trials of reaping machines by Hussey and McCormick in the same fields in Virginia, in 1843, one at Hutchinson's, and the other on the plantation of the late Senator Roane, at Tree Hill, near Richmond, McCormick's raker _walked_ by the side of the machine, while Hussey's _rode_ on the machine, in the same manner as he did just exactly ten years before.

We have three letters from the late Hon. William H. Roane referring to these trials, and ordering a machine from Hussey, after witnessing the operation of both. Two of the letters he desired might not be published; but says in one of them, "I have no objection to your stating publicly that a _member_ of the committee who made the report last summer at _Hutchinson's_, which was published a few days thereafter, witnessed a fuller and fairer trial between the two machines, and has in consequence ordered one of yours. * * * What I have said above of ---- is intended only for your eye _confidentially_, to show you in part the character and probable motives of the opposition your Reaper has met. Let what I say be private, as I have a great objection to going into the newspapers. Should you ever want it, you can have from me the strongest public testimonial of my good opinion of your machine."

The third letter, giving this "testimonial," was published in the American Farmer in January, 1844. As the Raker's Seat--the main feature of C. H. McCormick's patent of 1847--comes fairly within the scope of this enquiry as to priority of invention, we re-publish Senator Roane's letter and also furnish other testimony on the subject.

"_To the Editor of the American Farmer:_

"As the question of _which is the best Reaping Machine_ is of no little importance to wheat growers, it is highly necessary that they be rightly informed of every fact which tends to decide the question. The trial which forms the subject of the following correspondence was looked forward to with great interest by farmers; such was the partial character of the trial, and the general terms of the committee's report, in which the particulars that led to the result were omitted, it cannot appear strange that the public should be in some degree misled with regard to the relative merits of the two machines. If my own interest was alone concerned, I would not thus far trespass on your columns, but you will doubtless agree with me, that it is due to wheat growers throughout the country that the views expressed by Mr. Roane, in connection with the committee's report, should be published as extensively as the report itself; I therefore solicit the insertion of the following correspondence in your paper.

"Very respectfully,

"OBED HUSSEY."

[Sidenote: Hussey Letter to Mr. Roane]

"Baltimore, January 18th, 1844.

_"To the Hon. William H. Roane:_

"Dear Sir--You will remember that a trial took place on the farm of Mr. Hutchinson near Richmond, Va., in July last, between my reaping machine and Mr. McCormick's, at which trial you were one of a committee which gave the preference to Mr. McCormick's machine.

"You will also recollect that the machine which I used at that time was a small one, and quite different from that which I used in your field a few days afterwards in a second trial between Mr. McCormick and myself.

"As the first trial was made under circumstances unfavorable to myself, owing to the difficulties which prevented me from getting my best machine to the field on that day, and other impediments incidental to a stranger unprovided with a team, etc., and as no report was made of the second trial, you will oblige me by informing me what your impressions were after witnessing the second trial.

"I would very gladly embrace the opportunity which the next harvest will afford of following up my experiments in wheat cutting in Virginia, but the new field opened to me in the _great west_ for cutting hemp, in which I was so successful last September, as will appear by the Louisville 'Journal' of that date, will claim my particular attention this year. I mention this to you lest it might appear that I had abandoned the field in Virginia by my non-appearance there in the next harvest.

"Very respectfully yours, etc.,

"OBED HUSSEY."

[Sidenote: Mr. Roane's Reply]

"Tree Hill, January 23d, 1844.

"Dear Sir: