406 WRIGHT— POWER TO ESTABLISH 



tary governments for occupied territory, and territory annexed by 



treaty but not yet organized by Congress. ^^ 



" Theoretically," said the Supreme Court, " Congress might prepare and 

 enact a scheme of civil government to take effect immediately upon the 

 cession, but practically, there always have been delays and always will be. 

 Time is required for the maturing and enacting of an adequate scheme of 

 civil government. In the meantime, pending the action of Congress, there 

 is no civil power under our system of government, not even that of the 

 President as civil executive, which can take the place of the government 

 which has ceased to exist by the cession. Is it possible that, under such cir- 

 cumstances, there must be an interregnum? We think clearly not. The 

 authority to govern such ceded territory is found in the laws applicable to 

 conquest and cession. That authority is the military power, under the 

 control of the President as Commander-in-Chief, . . . But whatever may 

 be the limits of the military power, it certainly must include the authority 

 to establish courts of justice which are so essential a part of the government." 



The authority of such officers and courts is, however, confined to 



the locaHty. They cannot exercise a prize jurisdiction.^*^ 



233. Appointment of Military and Civil Officers. 



The states are guaranteed the privilege of appointing mihtia 

 officers, but the President may delegate his authority as Commander- 

 in-Chief of the militia when " in the actual service of the United 

 States " to an officer of his own appointment.^^ The appointment 

 of army and navy officers, as well as of civil officers, is vested in 

 the President acting by and with the advice and consent of the 

 Senate, except insofar as Congress may have vested the appoint- 

 ment of inferior officers " in the President alone, in the courts of 

 law, or in the heads of departijients." The President may make 

 interim appointments during a recess of the Senate.^® 



Congress has actually vested the appointment of warrant officers 

 of the Navy and Marine Corps in the President alone and tem- 

 porarily in the Secretary of the Na\^'.^^ Petty officers in the Navy 

 and non-commissioned officers in the Army are appointed by com- 

 missioned officers. Commissioned officers are generally appointed 



35 Santiago v. Nogueras, 214 U. S. 260. 



3" Supra, sec. 227. 



37 Secretary of War Monroe, 1812, Am. State Pap., Mil. Aff., i: 604; 

 Att. Gen. Butler, 2 op. 711 (1835). 



*8 Supra, sec. 228. 



s8 Rev. Stat., sec. 1405, Act May 22, 1917, sec. 5, 40 Stat. 86; Comp. Stat., 

 sees. 2554, 2555. 



