Metropolitan News-Enterprise


Wednesday, November 24, 2010


Page 7



Pioneer Sutherland Makes His Way West to Wisconsin, Serves in Office There, Heads for California




138th in a Series


THOMAS W. SUTHERLAND, the second district attorney for Los Angeles County—though overlooked as such by historians—was previously U.S. attorney for the Territory of Wisconsin (sometimes then spelled “Wiskonsan”) and, in a later term, for the state that territory became.

In between those stints, in the pre-citihood days of Madison, he held a post akin to that of a mayor.

Sutherland, along with his wife, arrived in California, by wagon train, in late 1849.

He was a frontiersman, politician, and lawyer.

The Wisconsin State Journal’s edition of Feb. 28, 1908, contains the text of a paper read before a meeting of the “Madison Old Settlers” the previous evening. It includes this:

Thomas W. Sutherland…was a man of ability, a fine specimen of physical manhood, who loved adventure. He was born in Philadelphia and at an early age came to Indiana upon some business connected with the Indians, probably under government employ. After transacting that business, he made his way across the country to Council Bluffs, Iowa, on the Missouri River, and then procuring a pony, he traveled alone from that place to St. Anthony Falls [Minnesota] through a country only occupied by wild indians and several years before [John C.] Fremont [later U.S. senator from California and the Republican Party’s first presidential nominee] explored the same region with a company of United States soldiers to protect him. Arriving at the Falls of St. Anthony, he procured a canoe, came down the Mississippi to the mouth of the Rock River, ascended the Rock to the north of the Calfish, or Yahara, and made his way up to the site of the present city of Madison.

“History of Dane County, Wisconsin,” published by the Western Historical Company in 1880, confirms that Sutherland did go to Indiana on government business, traveling there in 1835 “with H. L. ELLSWORTH, Commissioner of Patents, as a Clerk of a commission to settle some Indian matters.” It tells of his journey to Madison and relates:

“Here he spent some time in an Indian camp on the east side of Lake Monona, opposite the capitol, and this he then resolved upon as his future home. After a short visit to Philadelphia, he returned, and, as soon as the lands came into market, made considerable purchases in this neighborhood, and settled at Madison very soon after it was fixed upon as the capitol of the Territory, and was elected the first President of the incorporated village.”

That was not the only office Sutherland would attain by election. As recounted in the last column, he was chosen by voters in April 1850 as San Diego’s county attorney and, shortly after that, elected as San Diego city attorney. There were other elective posts Sutherland sought, in Wisconsin and here, which he lost.

Sutherland was a Philadelphia lawyer, fleetingly. The Aug. 5, 1839 issue of the Pennsylvania Inquirer and Daily Courier contains this item:

“On motion of J. B. Sutherland, Esq. THOMAS W. SUTHERLAND was this day duly admitted to practice as an Attorney in the Court of Common Pleas of the city and county of Philadelphia. Aug. 3, 1839.”

The lawyer moving for the admission was Joel Barlow Sutherland, a doctor-turned-lawyer who was father of the applicant. He had been a Democratic member of the U.S. House of Representatives from 1827-37.

The admission apparently took place during Thomas Sutherland’s “short visit to Philadelphia” before returning to Madison.

In the Nov. 25, 1839, issue of the Madison Express, an ad appears, which was to run for several months, placed by “Brigham & Sutherland, Law Office and Land Agency.” Among the references listed by the firm—comprised of David Brigham and Thomas W. Sutherland—are Massachusetts Gov. Edward Everett (a future U.S. secretary of state and U.S. senator). Everett had served in Congress with Sutherland’s father, also listed as a reference.

Among other references are Ellsworth, the commissioner of patents Sutherland had accompanied to Indiana; Henry King of Pennsylvania who had served with the elder Sutherland in the House; Lucius Lyon, former U.S. senator from Michigan; and Sherman Page of New York, a former member of Congress. It’s doubtful that any of these men could have vouched for the legal competence of Sutherland or his partner based on personal knowledge, and it must be assumed that this was an instance of a father’s political connections inuring to the benefit of his son.

Thomas Sutherland in 1840 sought election to the territory’s House of Representatives. There were two seats allocated the district, and he failed to secure either of the nomination of the Democratic Party for either of them, proceeding to run as an independent. The Sept. 23, 1840, issue of the Wiskonsan Enquirer cautions:

“From sundry circumstances which have come to our knowledge, we are induced to believe that some little deception will be resorted to by the friends of a certain candidate for the House of Representatives, in order, if possible, to effect his election. We advise the voters in the district to look closely at their tickets. The names of the regularly nominated candidates are Lucius I. Barber, of Jefferson, and James Sutherland, of Green. The self-nominated candidates are Jacob LyBrand, of Green, and Thomas W. Sutherland, of Dane.”

Back then, ballots did not have to take any particular form, and a voter could plunk in the ballot box a pre-marked ticket.

It was an election marked by innuedo and back-stabbing. The Democratic nominees won the seats; Thomas Sutherland came in third.

LyBrand, in a message he paid to have inserted in the Oct. 10 issue of the Wiskonsan Enquirer, took a well-crafted swipe at Sutherland that was both damning in effect and gracious in manner:

Since my intimate acquaintance with Thomas W. Sutherland Esq., I have had more than ordinary feelings of friendship for him, and was lead to believe from his professions towards me that the friendship was mutual. But, how sadly have I been deceived! I express myself not in anger, but in sorrow. I have no feelings averse to Mr. Sutherland[’]s prosperity and happiness, on the contrary, as he is yet young, I hope that he may have a long and profitable life before him. And with years he will of course gain experienc[e] and as no one is so wise but that they can still learn wisdom, may he be enabled to know that to “gain friends is to retain friends,” and to retain friends, is to be true to them.—Some of my friends attribute the failure of my election solely to Mr. Sutherland, either directly, or indirectly. I however attribute it to a variety of circumstances. Mr. Sutherland’s ideas of ambition, appeared to have got the advantage of the finer feelings of friendship, but I hope only temporarily.

The Whig Party won the presidential election of Dec. 2, 1840. Following the death of President William Henry Harrison on April 4, 1841—one month after his inauguration—Vice President John Tyler assumed the powers of the office (with uncertainty, at first, as to whether he had actually ascended to the office). On April 27, Tyler named Sutherland as U.S. attorney for Wisconsin territory. “Advice and consent” wasn’t needed because the appointment took place while the Senate was in recess.

Income from the post, added to what Sutherland was deriving from his law practice, came in handy. The May 19, 1841, issue of Philadelphia’s North American and Daily Advertiser announces Sutherland’s marriage two days earlier “to JOANNA, daughter of the late Dr. Edward Hudson, of this city.”

On June 17, with the Senate in session, Tyler took action to “renominate” his recess appointees. Sutherland was confirmed on July 22.

A June 23, 1841, article in the Wisconsin Enquirer queries:

“Who is Thomas W. Sutherland that he should have received the appointment of U. S. Attorney? What are his ‘character and pretensions’—was his elevation a reward of merit, or a compensation for the services rendered the whig party by his father?”

The appointee’s father, though serving in the House of Representatives for 10 years as a Democrat, had switched to the Whig Party, losing in the 1836 and 1838 elections.

The 1841 article goes on to say of Thomas Sutherland:

“His politics, who will venture to say what they may be a week hence? —as a lawyer he does not maintain a rank above the most ordinary pettifogger. Here, most certainly, the President must have been ignorant as to the qualifications of the applicant. He has not political standing to render him serviceable as a politician, nor ability to fulfill the duties of the station to which he has aspired,…”

There was not a vast array of lawyers in the territory among whom the president could have made a selection. An indicator of that is that the minutes of the Bar of Wisconsin Territory, published in the Milwaukee Sentinel’s issue of March 5, 1842, shows that 23 lawyers from nine counties participated. (Sutherland, elected secretary at that meeting, took the minutes.)

Despite the scant number of lawyers in the territory, there seemed little doubt that Sutherland was tapped as a political payback to his father. This reward was in addition to his own appointment as “naval officer” for the Port of Philadelphia, a lucrative position. The May 16, 1845, issue of the U.S. Gazette, published in that city, tells of the seizure from a docking vessel of goods; after deduction of the costs of sale, $1,531 was realized; of that amount, the U.S. got only $765.77, with Sutherland garnering $255.26 in fees, and the balance going to two other office-holders.

As a U.S. attorney in the frontier, Sutherland dealt with legal matters quite unlike those attended to by his counterparts in the east.

He was one of six U.S. attorneys sent a Nov. 6, 1841, letter by the solicitor of the treasury seeking reports, on an ongoing basis, of prosecutions of traders for selling liquor to Indians. Under an act of 1834, a trader had to be licensed and had to post a bond in order to make sales of lawful articles to Indians—but selling alcohol to them was totally prohibited.

A public notice signed by Sutherland, dated Dec. 8, 1841, and appearing in the Madison City Express over a period of months, observes that “certain ill-disposed persons have committed serious damage to the Public Lands, by cutting down and destroying the Timber thereon; and by such means have impaired the value of the same,  both to the United States, and to the future actual settler.” It admonishes tresspassers “to desist from those illegal acts” and threatens prosecutions.

The 1941 book “Wisconsin: A Guide to the Badger State” provides this description of Madison at the time Sutherland was its chief official:

“In 1846 Madison was incorporated as a village with a population of 626, and Thomas W. Sutherland became president. The hotel lobbies were choked with legislators, lobbyists, and visiting politicians, and the press rebuked them for their horseplay, profanity, and hard drinking. More roads began to radiate from Madison, but there were still no streets.”

Sutherland also played a role in education. At a Jan. 11, 1840, joint session of the two houses of the territorial legislature, he was one of three men elected to the Board of Visitors of Wisconsin University, and was appointed by the governor in 1848 as a regent of the university.

It was politics that caused Sutherland to lose his post as U.S. district attorney.

When Democrat James K. Polk became president in 1845, he cast out appointees of Tyler in droves. The commission of Thomas Sutherland wasn’t renewed, notwithstanding that he was a Democrat. Hostile coverage of him by some newspapers might have played a role in the president’s decision. A July 14 recess appointment was made of the territory’s attorney general, William P. Lynde.

 Too, Joel Sutherland was replaced as naval officer, even though he had served in Congress with Polk and was on favorable terms with him. That was despite having been rivals in one instance: Joel Sutherland vied with Polk in 1834 for the post of House speaker (a contest neither won, and in which frontiersman Davy Crockett, a representative from Tennessee, gained one vote during the 10 rounds of balloting).

Writing from Philadelphia on July 28, 1845, a Democratic Party stalwart, Daniel T. Jenks (whom Polk would appoint as clerk in the U.S. Customs House two years later) lectured the president that the “removal of Judge Sutherland, was a most decided mistake.” Jenks reminded him that Sutherland—whose title stemmed from service as as judge of the Court of Common Pleas in 1833-34—had been instrumental in winning Pennsylvania for Polk in the presidential race.

“I did hope that his Son would have been reappointed,” the letter says, and comments:

“I well know that you entertain a very high regard for the Judge; something in my Judgement therefore ought to be done for him. I know he is your friend, and wishes your administration great success.”

That letter appears in “Correspondence of James K. Polk, July-December 1845,” published in 2004. The editors note that on Nov. 1, 1845, Joel B. Sutherland wrote to the new president asking “that his son, Thomas W. Sutherland, be reappointed as district attorney for the Wisconsin Territory despite allegations of official misconduct existing against his son.”

Spurning the plea, Polk on Dec. 29 sent to the Senate his nomination of Lynde, who was confirmed.

However, Polk did return the younger Sutherland to office…later. Lynde was elected to the U.S. House of Representatives on May 8, 1848, and took his seat on June 5, one week after Wisconsin was admitted to the union. Polk on June 12 nominated Sutherland to his old post, and he was unanimously confirmed by the Senate that same day.

Perhaps Sutherland would have stayed on as U.S. attorney had the Democratic presidential nominee that year, Lewis Cass, been elected. He wasn’t; Whig candidate Zachary Taylor was. Sutherland resigned.

Gold had been discovered in California, and Sutherland was westward bound again.


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