CHAP. 17] LEGAL BASIS 67
to some extent condition the action of the Governor, and
help to render responsible government in part necessary.
These rules were adopted deliberately as the expression of
a desire to secure the régime of constitutional rule, but it
must be admitted that they fall lamentably short of achieving
in law any such result as their framers aimed at.
In the New South Wales Constitution? as approved by the
Imperial Government, it is provided in s. 37 that the appoint-
ment to all public offices under the Government which
should be vacated or created should be vested in the
Governor with the advice of the Executive Council, with the
exception of the appointments of the officers liable to retire
on political grounds, which appointments should be vested in
the Governor alone, while minor appointments by Act of the
Legislature or by order of the Governor in Council might be
entrusted to heads of departments or other officers. Provision
is also made for a Civil List on condition of the surrender
of the revenues of the Crown, and provision is made for
pensions for officers who on political grounds may retire or be
released from their offices. Moreover, it is laid down in s. 18
that any person holding any office of profit under the Crown
shall be incapable of being elected, or of sitting or voting
as a member of the Legislative Assembly, unless he is one
of the officers of the Government specified in the section,
Viz. the Colonial Secretary, Colonial Treasurer, Auditor-
General, Attorney-General, and Solicitor-General, or one of
such additional officers, not being more than five, as the
Governor with the advice of the Executive Council may
from time to time, by a notice in the Government gazette,
declare to be capable of being elected a member of the
Assembly, but re-election was required until 1906, when the
Practice was abolished. These provisions sum up the legal
Sanction for responsible government in New South Wales
even at the present day, and it is clear that they are utterly
insufficient to give the Government a parliamentary basis,
* 18 & 19 Vict. c. 54 (confirming and altering 17 Vict. No. 41 of the local
Legislature). Cf. Act No. 32 of 1902, which adds nothing beyond an
neidental recognition of ministers as executive councillors.
