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CHAPTER X.: WANT OF ADEQUATE OBSEQUIOUSNESS MORALLY IMPOSSIBLE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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WANT OF ADEQUATE OBSEQUIOUSNESS MORALLY IMPOSSIBLE.
Obsequiousness found unavoidable by a veteran Advocate.
In any published written discourse, taking for its subject the propriety of public measures, or of the conduct of public men, whatever merits disapprobation, presents an adequate demand for punishment. This principle being either expressly laid down or assumed, and juries habituated to accede to it, and act in conformity to it, it seems not very easy to conceive what that published discourse can be, to which, if written on any such subject as that in question, a jury, even though it were not a draught from the select and secret qualified list, would, on any tolerable ground of probability, be expected to refuse to attach a verdict of conviction. Yes: if so it be that, in the alleged libel that lies before them, there be not one of them that can find an expression or a word which he feels himself disposed to disapprove: viz. neither on any such score as decency, or liberality, or candour, or propriety, and so forth, as above:—and what if he can not? Only that in that case, for supporting a verdict of conviction, then some other ground must be looked out for, of which, while such doctrines as have just been seen are acceded to, whether it be possible there should be any deficiency, the reader may now judge.
If, in the event of his entertaining, in relation to any passage thus brought under his review, any such emotion as that of disapprobation or dislike, it would afford to his feelings any gratification to be contributory to the subjecting the delinquent to punishment, in such case, whether a juror will not find, in these established doctrines, an amply sufficient warrant, for the affording this gratification to the irascible part of his frame, may be seen already.
But, whether inclined or not inclined, will it be in his power to avoid it?—In his power? physically or metaphysically speaking, yes:—but, to keep clear of metaphysics and every thing that ends in—ism, practically speaking—whatever be the state of a juryman’s inclinations, can there, for any proposed writer on politics or legislation, which is as much as to say for any proposed libeller—can there be any rational hope or prospect, of witnessing, on the part of any such juryman, any such forbearance?
The degree of probability in question cannot, it is evident, but be, in a high degree, influenced, even if not in one event converted into moral certainty, by the mode of address pursued by the directing judge: by the degree of freewill which it may please this creator to have left or not left to his habitually obedient creatures. To learn, if possible, a thing so necessary to salvation, let us open the book of history, that in it we may behold the words of prophecy, and read in it the eventual doom that is in store for us.*
“No question is made,” says the Lord Chief-Justice, “as to the publication itself being a libel:”—the fact is incontestable, but the cause, what can it have been? The inquiry is a curious one: and in the answer may be seen a confirmation of the moral impossibility of any verdict other than that of guilty at the hands of a jury of guinea-men, not to say of any men, so directed.
On the trial of the other defendant, in regard to some parts at least, if not the whole, of this multifarious libel, a “question” of this sort had, as we have seen, been made: made, and by the same learned gentleman, who, after having been leading counsel for the political writer, officiated now in the same character for the culprit judge. The question having been made then, how comes it not to be made now?
On that former occasion, the authority which the learned counsel had to contend with, was no other than that of a single judge: on this present occasion, the authority before which he has to plead, is that of the entire judicatory:—-a judicatory, composed of four judges, of whom the judge in question, though in authority the chief, was in number no more than one.
“Do you maintain that a person has a right to ridicule his neighbour . . . . ?”
In the report given of this trial, the words pronounced by the noble and learned Lord Chief-Justice are reported, or professed to be reported, by the reporting scribe:—the tone, the countenance, the deportment, by which the interruptive interrogation was accompanied, were not—any of them—nor could they have been—included in the report.
Whatsoever was the cause—whether an acquaintance with the persons and dispositions of the guinea-men to whom the defence would have been to be addressed—a consciousness that under such direction obsequiousness was a virtue not confined to the jury-box—or a casual deficiency of nervous power, such as learned advocates for liberty, no less than the unlearned, are liable to—or that, even where there is nothing dangerous, there is something unpleasant, and to polished feelings, grating, in kicking against the pricks, and pressing against the feelings of official superiors, whose countenances are day by day to be encountered—so it is that there being, according to the learned counsel’s own statement at least, nothing more at stake than “the liberty of the press”—that liberty which, as he had observed, “has ever been held as one of the first principles of the constitution”—nor from the doctrines, against which, on that former occasion, he had with so little fruit been contending, any worse effect to be apprehended, than the extinguishing of “that liberty for ever”—whatsoever may have been the cause of the abandonment, so it is that before this reinforced, and de jure at least superior, judicatory, the contest was not renewed.
On the part of a trained Juryman, Unobsequiousness still more hopeless.
But, if such was the no-resistance made by a sturdy veteran,—possessing, too, in the plea of professional duty, an excuse such as might have been expected to disarm resentment, call forth sympathy, and edulcorate feelings in the bosom even of the most obdurate judge—what, under such direction, could have been or ever can be—expected, for the relief of a defendant libeller, or for the preservation of the about to be “extinguished liberty”—what, I ask, can, to any such purpose, be, with any the least colour of reason, expected, from the firmness—let us not say of the craving guinea-man, who, in one unacceptable verdict, beholds the extinction of the race of his expected guineas—but of any gentleman habituated (as by the discipline of the Blackstone school all gentlemen are habituated) to regard in every word that cometh from the mouth of one of the reverend and learned twelve, the rule of legal faith—the unerring standard of rectitude?
[* ]“Report of a trial at bar of the Hon. Mr. Justice Johnson, one of the justices of his Majesty’s Court of Common Pleas, in Ireland, for a libel, in the Court of King’s Bench, on Saturday the 23d day of November 1805. Taken in short-hand by T. Jenkins and C. Farquharson, London, 1806:”—being the same libel of the publication of which Mr. Cobbett had been convicted as above.