Freedom of Speech 
by Eric Barendt.
Oxford, 314 pp., £35, November 1985, 0 19 825381 8
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The Espionage of the Saints: Two Essays on Silence and the State 
by David Caute.
Hamish Hamilton, 212 pp., £12.95, January 1986, 9780241117507
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A Question of Judgment 
by Sara Keays.
Quintessential Press, 312 pp., £9.95, November 1985, 1 85138 000 0
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The enlightened editor of this publication has sent me these three books for review, having detected some symmetry which might make a joint review appropriate. All three are concerned with an aspect of freedom of speech; all three, moreover, attend to the age-old enigma of whether betrayal of a pledge can ever be justified, and if so, in what circumstances. One of them, Miss Keays’s book, can be briefly disposed of. In her case the betrayal is twofold. First, the betrayal of a lover by the desertion of her partner, and, secondly, the betrayal by the aggrieved lover of the private story of the romance. Wiser counsels – family counsels in particular – should have prevailed upon her to recognise that such a book would earn her little sympathy even among the many who had sympathised with her distress. It is indeed difficult to feel sorry for anyone who feels such poignant sorrow for herself. I am irresistibly reminded of the famous dog in Three Men in a Boat. His name, I believe, was Montmorency, and at one stage the author describes how, when someone trod on his tail, ‘he appealed to the solar system.’ This is Miss Keays’s appeal to the solar system and she will, I fear, have met the same response as poor Montmorency. It is a kindness to say no more about the book.

Mr Barendt’s book is in part a legal treatise – and a carefully compiled and interestingly written one – on the law relating to freedom of speech and to its restrictions. Most lawyers have little knowledge of this subject beyond a hazy recollection that Dicey’s classic work emphasised that there was no constitutional claim to freedom of speech, or indeed to many other sorts of freedom, but that, in the words of this author, ‘freedom exists where statute or common law rules do not restrict it.’ For most lawyers – for some, I must concede, more than others – Dicey was a long time back. The book excellently sets out the legal position, but it does rather more than that. Interestingly interspersed with a legal statement are statements of the political, moral and philosophical aspects of the subject. The author is rightly critical of the safeguards that exist in this country to protect what most civilised people regard as the ordinary liberties. In this respect, the book is timely. The present tenor of political opinion does not summon enthusiasm about this protection: it is not unfair to detect in the new political climate some feeling that liberty of expression has gone too far. This is ironic when viewed against the safeguards enjoyed by other countries more potent than our own – by the United States especially, where the position in relation to freedom of speech, freedom to refrain from speech, and libertarian rights in general, has become so entrenched that even the present regime, alas notoriously illiberal, would not dare to strike at the historical foundations of these rights.

Mr Barendt’s book does not discuss in so many words the problems raised by the recent trials of Miss Tisdall and Mr Ponting, but a reader guided by his book alone would not arrive at the view that their behaviour called for total applause. These, indeed, are cases where completely impartial and objective consideration must leave the mind sitting on the fence, if readers of this publication will swallow such a metaphor. Before commenting further on this dilemma and referring to the third of these books, it would be wise to recollect that the problem posed by the cases of Tisdall and Ponting is not a novel one. It is the conflict between the unfaltering recognition of a duty to one’s contractual obligation and succumbing to the wholly virtuous temptation to default on this obligation in favour of a strong moral compulsion.

A short historical excursion is very much to the point in this context. The dilemma goes back a long way, and perhaps the classic illustration is to be found in the 1870s with the case of Charles Marvin, who later established a considerable reputation as an author on the affairs of Europe and Central Asia. Contemporary critics praised his books about Russia and the East. Except by scholars, these works are long forgotten, but what is remembered is his brush with the law in circumstances displaying a startling similarity to the cases of Tisdall and Ponting. For those who wish to read a fuller account of the Marvin story I would recommend a book – first published in 1924 and long out of print – by one Judge Parry, who wrote interesting little feuilletons on legal subjects. My information about Marvin derives principally from Judge Parry’s book: his case is not referred to by Mr Barendt, but it should have been. In his early days Marvin aspired to a place in the Civil Service. His aspirations were unhappily brought to nothing by the fact that he was a few days or weeks too late for the appropriate entry examination and was told as a result, in the words of Judge Parry, that ‘no service, however prolonged, would give him any claim on the office, and he had no prospects of promotion.’ He was therefore temporarily employed as a ‘tenpenny’, which meant that he received ten-pence for each hour he worked and that no virtue or exertion could improve on this sorrowful position.

Not unnaturally, he became aggrieved, and it will probably always be impossible to assess whether it was a sense of grievance about his employment or indignation at the discovery of a governmental hypocrisy which determined his historic betrayal. In May 1878, Lord Salisbury and the Russian Ambassador in England, Count Schouvaloff, were busy concocting a treaty. Unhappily for Lord Salisbury, Marvin, already embittered over his employment, had a deep hostility to the ‘Russian Ex-Inquisitor’, as he called him. It was his belief that any arrangement made would be to England’s dishonour. Ironically, it was this particular ‘tenpenny’ who was called upon by his superiors to copy some parts of the new treaty. He was also directed to read the entire document so as to verify one copy against another. Unfortunately also for Lord Salisbury, Marvin was the student of a well-known memory system known as Stokes. Miraculously, he was able to memorise not only those parts of the treaty that he had copied but the whole of the rest of it that he had read over in the process of verifying it. Whatever drove him to it, whether it was a desire for revenge for his own treatment or a more virtuous desire to inform the world of Lord Salisbury’s activities, he made up his mind that whatever other prospects might exist for him he had had enough of being a ‘tenpenny’. His suicide in this incarnation took the form of calling at the office of the Globe newspaper and providing the editor with complete details of the treaty. The aftermath could have been expected. As the Globe had only published reported extracts – and not in the precise language of the treaty – Lord Salisbury, when questioned in the House of Lords by Earl Grey, lied like a trooper and gave the House his assurance that the reports ‘were wholly unauthenticated and not deserving of the confidence of your Lordships’ House’. The equivocation was to infuriate Marvin even further. He had been accused of providing the Globe with inaccurate information. His next move was to make a complete copy of the treaty and to trot down to the Strand to hand it in to the Globe. It will be well understood that this created a political sensation.

The Foreign Office were of course enraged. Poor Marvin was arrested and flung into gaol, but the comic part of the matter is that – in the absence of an Official Secrets Act – no one could think of anything with which he could be charged. The bright idea occurred to someone that he should be charged with the theft of the paper, but Marvin had displayed enough acumen to provide his own paper. Ingenuity stopped short of charging him with the theft of the ink or the wear on the nib. Marvin spent a couple of uncomfortable days in clink, then had retained for him the legendary solicitor Sir George Lewis. (Sir George would undoubtedly have been the man to deter Wilde from his mad conduct in prosecuting the Marquis of Queensbury, but unhappily he was not retained in that case.) Marvin appeared before the magistrate (a Mr Vaughan), who had no difficulty in deciding that no offence had been committed. Marvin went free. The Government, and Lord Salisbury in particular, were subjected to a great deal of derision. Marvin’s later career was not without distinction, and certainly procured greater rewards than tenpence per hour, but its high spot remained the treaty episode, and it is an interesting case to recollect in the context of Tisdall and Ponting.

Mr Caute’s book, the most interesting of those under review, is divided into two long essays. The first, ‘Marechera and the Colonel’, does not, I think, dovetail very neatly with the second, which is a detailed study of the Tisdall and Ponting cases. Mr Caute has a vivid style and a creditable regard for detail. The first essay is really the story of a wild man, the Zimbabwean writer Dambudzo Marechera, who holds the belief that he need not conform in any way with conventional notions of social behaviour. He was to discover, Mr Caute records, that such manumission carried a heavy penalty. But fear of the penalties never restrained or inhibited his behaviour. He trailed his coat consistently and would, it seemed, have been disappointed if retribution according to the notions of his tormentors had not followed. The Tisdall and Ponting cases form the subject of the second essay. Both of them were decent and respectable people, but neither emerges immaculate from Caute’s account. Both courted martyrdom: but there was a degree of ambiguity and uncertainty about that quest that is all too human and wholly venial. These two cases, together with some of the other aberrations that have occurred, in the field of public service, over the last forty years, might cause one to reflect that the ability to deal adequately with the difficult or sensitive employee at times of strain or crisis is apt to be found wanting in the Foreign Office, and elsewhere in the Civil Service: no doubt it is rare in other places too. This makes it the more important that the prosecuting authorities, however much they may be urged on by government, should recognise the unwisdom of prosecuting, as indeed of manufacturing, martyrs.

Mr Barendt’s book will be of value to thinking lawyers and to many laymen. Mr Caute’s is of general interest, and I hope it will be accorded the success it deserves. It records what can only be regarded as an unexpected timidity on the part of the best of our daily newspapers. Even the Guardian nods and in relation to Miss Tisdall the failure to stand firm about disclosing sources is not the most creditable episode in an otherwise creditable history. I would like to feel that the lesson has been taken to heart by all newspapers.

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