Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/408

 400 an office, and the commission of an officer, who has been appointed, remains the same, as if in practice the president had commissioned officers appointed by an authority, other than his own. It follows, too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and, if he was not removable at the will of the president, would either give him a right to his commission, or enable him to perform the duties without it. These observations are premised solely for the purpose of rendering more intelligible those, which apply more directly to the particular case under consideration.

§ 1543. This is an appointment made by the president, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise, than by proving the existence of a commission. Still the commission is not necessarily the appointment; though conclusive evidence of it. But at what stage does it amount to this conclusive evidence? The answer to this question seems, an obvious one. The appointment, being the sole act of the president, must be completely evidenced, when it is shown, that he has done every thing to be performed by him. Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still, it would be made, when the last act to be done by the president was performed, or, at farthest, when the commission was complete. The last act to be done by the president, is the signature of the commission.