[300] 286 U.S. 6 (1932).
[301] Corwin, The President, Office and Powers (3d ed.), 92.
[302] Marbury v. Madison, 1 Cr. 137, 157-158, 182 (1803).
[303] 12 Op. Atty. Gen. 306 (1867).
[304] It should be remembered that, for various reasons, Marbury got neither commission nor office. The case assumes, in fact, the necessity of possession of his commission by the appointee.
[305] Opins. Atty. Gen. 631 (1823); 2 ibid. 525 (1832); 3 ibid. 673 (1841); 4 ibid. 523 (1846); 10 ibid. 356 (1862); 11 ibid. 179 (1865); 12 ibid. 32 (1866); 12 ibid. 455 (1868); 14 ibid. 563 (1875); 15 ibid. 207 (1877); 16 ibid. 523 (1880); 18 ibid. 28 (1884); 19 ibid. 261 (1889); 26 ibid. 234 (1907); 30 ibid. 314 (1914); 33 ibid. 20 (1921). In 4 Opins. Atty. Gen. 361, 363 (1845), the general doctrine was held not to apply to a yet unfilled office which was created during the previous session of Congress, but this distinction is rejected in 12 ibid. 455 (1868); 18 ibid. 28; and 19 ibid. 261.
[306] 23 Opins. Atty. Gen. 599 (1901); 22 ibid. 82 (1898). A "recess" may, however, be merely "constructive," as when a regular session succeeds immediately upon a special session. It was this kind of situation that gave rise to the once famous Crum incident. See Willoughby, III, 1508-1509.
[307] 5 U.S.C. § 56.
[308] 6 Opins. Atty. Gen. 358 (1854); 12 ibid. 41 (1866); 25 ibid. 259 (1904); 28 ibid. 95 (1909).
[309] 272 U.S. 52.