Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/412

 404 the acceptance thereof, might be deemed necessary to complete the right of the plaintiff. The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment, which must precede it, and which is the mere act of the president. If the executive required, that every person, appointed to an office, should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the president; the transmission of the commission is the sole act of the officer, to whom that duty is assigned, and may be accelerated, or retarded by circumstances, which can have no influence on the appointment. A commission is transmitted to a person already appointed; not to a person to be appointed, or not, as the letter enclosing the commission should happen to get into the post-office, and reach him in safety, or to miscarry.

§ 1546. It may have some tendency to elucidate this point, to inquire, whether the possession of the original commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office. In such a case, I presume, it could not be doubted, but that a copy from the record of the office of the secretary of state would be, to every intent and purpose, equal to the original. The act of congress has expressly made it so. To give that copy validity, it would not be necessary to prove, that the original had been transmitted, and afterwards lost. The copy would be complete evidence, that the