Peter Cashin and the judges

The Compass - - EDITORIAL OPINION -

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 one­half 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 hourand-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 chal- lenge 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 an­ti­cli­matic. 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.

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