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Peter Cashin and the judges


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Ed Roberts

Peter Cashin may well have been the greatest political orator in Newfoundland's history. If not, he runs a close second to Joseph Smallwood.

The two men dominated the National Convention between September 1946 and January 1948, during the prolonged debate about Newfoundland's future. Smallwood fought for Confederation, and Cashin fought just as hard for the return of Responsible Government.

But Cashin's most famous battle took place neither in the National Convention nor in the House of Assembly, where he sat for 14 years, but in a courtroom in downtown St. John's.

Peter Cashin spoke his mind. He did not hesitate to criticize those in high places when he thought it right to do so. On Feb. 28, 1948 he rose in the Convention, to oppose Smallwood's motion to send a delegation to Ottawa to sound out possible Terms of Union with Canada.

A bitter opponent of the Commission of Government that ruled Newfoundland between 1934 and 1949, he stunned the gathering by charging that it had been "brought about by skulduggery, ... by bribery, and corruption indirectly."

He went on to single out three men - Edward Emerson, Alexander Winter and Harry Winter - all of whom had been Members of the House in December 1933, when the House voted to surrender Newfoundland's self-government. He did not mince his words: the three men, he said, "were promised that if they voted for that resolution, they would be looked after."

Sued for libel

Each subsequently came to high office under Commission. Emerson became a commissioner and then chief justice of Newfoundland; Alex Winter, after serving as a commissioner, became registrar of the Supreme Court; and his brother Harry served successively as Commissioner for Home Affairs and Education and for Justice, before being appointed a judge of the Supreme Court.

The three men sued Cashin for libel. They retained Robert Furlong (who later became chief justice of Newfoundland) to represent them. Cashin defended himself, although he had excellent legal advice from John Devine, a St. John's lawyer. He opted, as was his right, to trial by jury.

The case was heard by Sir Brian Dunfield, the only other Supreme Court Judge. Eager spectators filled every corner of the largest courtroom. Nine jurors - all men - were sworn in. Furlong, to the surprise of Cashin and everybody else in the courtroom, called Cashin as his first witness. The two men sparred for two and one-half hours.

Emerson and Harry and then Alex Winter followed him into the witness box. The final witness for the plaintiffs was W.F. Galgay, manager of the Broadcasting Corporation of Newfoundland, who confirmed that Cashin's statements - as with all the proceedings of the Convention - had been broadcast over VONF, and that every Newfoundlander could have heard them.

Cashin opened his case by turning the tables on Furlong: he called him as a witness. After forcing him to acknowledge that he was a director of the BCN, he asked whether its managers had censored Cashin's speech before broadcasting it. And, if so, why had they allowed this allegedly libellous material to be presented? Peter rested his case there.

Public interest

Cashin and Furlong then addressed the jury. Peter's hour-and-a-half speech was a masterpiece. He flattered its members outrageously, telling them that he would "avoid what are called points of law and speak to you in the language of common sense."

His Convention speech was privileged, he said, because he spoke in a quasi-legislative body. (It would have been absolutely privileged if made in the House of Assembly under Responsible Government). If it wasn't privileged, then it was fair comment on a matter of public interest. And if the jury didn't want to accept that argument, then "my speech was true in substance and in fact" and so he could not be criticized for making it.

His conclusion was powerful: "What is behind it all? I personally do not believe the plaintiffs, left to themselves, would have brought this matter to court. Who or what then is the inspiration of it? [His clear implication was that they had done so at the urging of the governor, Sir Gordon Macdonald.] ... The plaintiffs intimated they have their rights. But so have I. So have the members of the National Convention. So have the people of this country. And these rights include the right of free speech on the part of a representative of the people and also they include the right of our people to know the hidden things in our political history."

He continued: "As I see it, it is not my speech which is on trial here today. But rather it is the free speech of all men, who in the interest of the public dare challenge or criticize the acts of politicians or government. That right has been lost to other people. It must not be lost to us. ... I have never feared to face the judgment of ordinary men. Many of the blessings of our former freedom have been lost to us, but not yet the right of trial by jury. ... And so it is, that today I look to you because I have nowhere else to look."

Furlong's remarks were anti-climatic. Dunfield, in his instructions to the jury, dismissed Cashin's legal arguments as being utterly without merit, and all but told the nine men that they had no choice except to find that Cashin had indeed libelled the three plaintiffs. He closed by instructing them that: "... You have to make up your minds in some fair and reasonable amount, what you regard as proper damages. ... You will find them as reasonable men - not too high and not too low; try to find some reasonable amount. You can take into account your opinion of the defendant's conduct up to now, and your opinion of the widespread nature of the publication."

Jury divided

The jury retired to consider their verdict. Within 90 minutes, they were back in the courtroom to tell the judge that they could not reach unanimity, and thus could not find a verdict. Dunfield asked Furlong and Cashin if they were prepared to accept the decision of a majority of the jury. Furlong said he would have to take directions from his clients; Cashin said "no." The trial ended.

Throngs of citizens had crowded into the courtroom throughout the day. Many members of the National Convention were there. Joe Smallwood, Cashin's political foe, came to sit with him while they waited for the jury to return. The crowd cheered Peter to the echo when the result was known.

Peter Cashin had won a great victory. He had humiliated the high and mighty of Newfoundland society who had tried to cut him down. He rightly considered his victory to be his greatest political achievement.

Edward Roberts has had a lifelong interest in the history of Newfoundland and Labrador. He was an MHA for 23 years, and served as the province's lieutenant-governor from 2002 to 2008.

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