When General Johnston received tidings of the disaster at Donelson he retired with his army to Murfreesboro, leaving Nashville, which he was unable to protect, a scene of panic and dismay, first advising Governor Harris to secure the public archives and convoke the Legislature elsewhere. It was in these circumstances that President Lincoln, on the same day, February 23, nominated, and the Senate, March 5, 1862, confirmed, Andrew Johnson as military governor of Tennessee with the rank of brigadier-general. As the commission antedates the action of the Senate by two days the President, no doubt, consulted the leaders of that body relative to the contemplated nomination, and received assurance of its favorable consideration.
Nothing in any way connected with the appointment of Senator Johnson, who was destined to act so conspicuous a part in the important and difficult work of reconstruction, can fail to be of interest, and any account of the execution of his office would be incomplete without some observations on the nature of his commission of which the following is a copy:
War Department, March 3, 1862.
To the Hon. Andrew Johnson:
Sir: You are hereby appointed military governor of the State of Tennessee, with authority to exercise and perform, within the limits of that State, all and singular the powers, duties, and functions pertaining to the office of military governor, including the power to establish all necessary offices, tribunals, etc.
Edwin M. Stanton,
Secretary of War.[[14]]
Quoting the essential part of this document a recent coöperative work has this comment: “The office [that of military governor] was new to the laws and history of the State and country. Its powers and duties were limited only by the will of one man, the occupant.”[[15]] From the commission itself we derive our prime conception of both the nature of the office and the functions which it comprehended. The authority of the incumbent extended to the exercise, within the limits of Tennessee, of all “the powers, duties, and functions pertaining to the office of military governor.” Nothing in this language implies that the office was of recent creation. Nor is its nature to be discovered by a perusal of the supplemental authority contained in the President’s letter of September 19, 1863, to Governor Johnson, for the official conduct of the latter on his arrival in Nashville can not be seriously thought to have been influenced by instructions received nineteen months later. It is perfectly true, as Mr. Ira P. Jones, author of the chapter on Reconstruction in Tennessee, asserts, that the office of military governor had never been exercised within that State; but it is not a fact that it was new to the laws and history of the “country,” if by this indefinite expression he means the United States. During the war with Mexico the American people had been made familiar with military commissions and with military governors. Secretary Marcy prepared, June 3, 1846, for General Stephen W. Kearny the following instructions: “Should you conquer and take possession of New Mexico and Upper California, or considerable places in either, you will establish temporary civil governments therein.”[[16]] To this direction general rules of conduct were added, and the letter authorized the assurance that “It is the wish and design of the United States to provide for them [the people of New Mexico] a free government with the least possible delay, similar to that which exists in our Territories.” By virtue of this authority General Kearny appointed Charles Bent governor of New Mexico. Mr. Polk in his Message of July 6, 1848, to Congress maintained that with the termination of war his power to establish temporary civil governments over New Mexico and California had ceased; the legality of their previous existence he justified by the law of nations. By cession to the United States, the government of Mexico no longer pretended to any control over them.[[17]] President Polk, differing from other leaders of his party, held that “until Congress shall act, the inhabitants will be without any organized government.”[[18]] But Congress, notwithstanding urgent appeals of the Executive, moved very deliberately in the matter of abolishing the office of military governor. In May, 1847, Colonel Richard B. Mason assumed the office of Governor and commander-in-chief of the United States forces in California. Two months after ratification of the treaty with Mexico he received notice of the fact, but no intimation that the civil government instituted by the President was discontinued. Without other instructions than an order to extend over California “the revenue laws and tariff of the United States” he, as well as his successor, General Riley, continued the existing government.
After affirming the legality of its institution the United States Supreme Court (Cross vs. Harrison, p. 193, 16 Howard) says that the existing government did not cease as a consequence of the restoration of peace; the President might have dissolved it, but he did not do so. Congress could have put an end to it, but that was not done. “The right inference from the inaction of both is, that it was meant to be continued until it had been legislatively changed.” In fact it was so continued until the people in convention formed a government, subsequently recognized by Congress, when California was admitted during the autumn of 1850 as a State.
The authority, then, of both political departments, as well as the more deliberate opinion of the judicial branch, of the General Government had established a precedent with which Mr. Lincoln was thoroughly familiar; for, by a singular coincidence, both he and Mr. Johnson were serving together in the Thirtieth Congress, which began its first session in December, 1847. They participated in, or were interested spectators of, all those stirring scenes that marked the beginning of one of the last legislative victories of slavery; so that this portion at least of American history was not strange to either the President or the Senator from Tennessee.