act, though it
can only be performed by and with the advice and consent of the Senate.
3d. The commission. To grant a commission to a person appointed, might,
perhaps, be deemed a duty enjoined by the constitution. 'He shall,' says
that instrument, 'commission all the officers of the United States.'"
Marbury _v._ Madison, 1 Cr. 137, 155-156 (1803). Marshall's statement
that the appointment "is the act of the President," conflicts with the
more generally held, and sensible view that when an appointment is made
with its consent, the Senate shares the appointing power. 1 Kent's Comm.
310; 2 Story Comm. Sec. 1539; Ex parte Hennen, 13 Pet. 225, 259 (1839).

[298] 3 Op. Atty. Gen. 188 (1837).

[299] 2 Story Comms., Sec. 1531; 5 Writings of Jefferson (Ford, ed.),
161 (1790); 9 Writings of Madison (Hunt, ed.), 111-113 (1822).

[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. Sec. 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.

[310] 19 Stat. 78, 80.

[311] 272 U.S. 163-164.

[312] The reticence of the Constitution respecting removal left room for
four possibilities, _first_, the one suggested by the common law
doct