Page:Harvard Law Review Volume 12.djvu/419

399 GOVERNMENT OF ISLAND TERRITORY. 399 States. Congress may create territorial offices, but it cannot fill them. Appointments must come from another source, and, so far at least as the leading positions are concerned, are ineffectual until commissions are signed by the President.^ Probably also he has a power of removal at will even of the judges.^ Certainly he has a far greater prerogative. Until Congress acts for the regulation of any particular territory which the United States may acquire, the President is under the constitutional duty to see that the authority of the United States is recognized there and the peace of the United States maintained. If the acquisition be by conquest, its government falls to him from the first as the commander-in-chief of the national forces. If it be by treaty, he must take possession, and control it through such temporary agencies as he may think proper, until Congress sees fit to act.^ Whether there are any provisions in the Constitution, or princi- ples that underlie it, which operate as partial restrictions upon the sovereign authority of Congress over the Territories, is a question which has repeatedly been presented to the Supreme Court of the United States, and to which its response has had a somewhat un- certain sound. In 1850, in a case, turning upon the effect of a terri- torial statute of Florida, the court spoke thus of territorial govern- ments in general. "They are legislative governments, and their courts legislative courts, Congress, in the exercise of its powers in the organization and govern- ment of the territories, combining the powers of both the Federal and State authorities. There is but one system of government, or of laws operating within their limits, as neither is subject to the constitutional provisions in respect to State and Federal jurisdiction. They are not organized under the Constitution, nor subject to its complex distribution of the powers of government, as the organic law; but are the creations, exclusively, of the legislative department, and subject to its supervision and control. Whether or not there are provisions in that instrument which extend to and act upon these territorial governments, it is not now material to examine." * This opinion was delivered while political discussion was still rife as to whether Congress could prohibit slavery in the Territories. ' Constitution, Article II, Section 3. ' McAllister v. United States, 141 U. S. 174, 178; Parsons v. United States, 167 U. S. 324, m. ' Fleming v. Page, 9 Howard, 602; Cross v. Robinson, 16 Howard, 164, 193.
 * Benner v. Porter, 9 Howard, 242.