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Decisions of the Nineteenth Century Tasmanian Superior Courts

Gilles v. Pugh [1842]

libel, failure to respond to party invitation - gentlemanly conduct, laws of honour - Launceston Club

Supreme Court of Van Diemen's Land

Pedder C.J., 6 October 1842

Source: Cornwall Chronicle, Commercial, Agricultural and Naval Register, 8 October 1842[1]

            Before His Honor the Chief Justice and the following Jury: - Messrs. Williamson, Morrison, Jas. Robertson, W. G. Walker, Perkins, Anderson, James Henty, Thomas Walker, Dumaresq, F. Spencer, G. M. Eddie, and Jas. H. Campbell.

            The Attorney-General opened the case. This was an action of trespass on the case for an alleged libel. The plaintiff has for many years been a resident of this colony, and had the universal good will of every person who had the pleasure of his acquaintance until the 11th August, when the defendant published a certain false, malicious and defamatory libel, which brought plaintiff into disrepute amongst many of his friends, who, in consequence, refused to enjoy with him that social intercourse which for years had been undisturbed. The damages were laid at £2000, and the defendant had pleaded the general issue. The learned counsel wished to impress forcibly on the minds of the jury, that his client did not bring this action with the view of putting money into his pocket, he would be satisfied with the smallest amount of damages, - the smallest coin in the realm, awarded as damages, was all he sought, but he (the Attorney-General) wished to mark his detestation of the conduct of the defendant, who had, by the publication of the defamatory libel, unwarrantably attacked the reputation of a gentleman whose character until that publication stood most high, and had been deservedly held in universal esteem. The plaintiff had held the highest offices since his residence in the colony, which he had filled, not more to his own credit than to the satisfaction and advantage of all persons connected with him; he had received his early education in the service of his country; he had nobly fought in the naval service the battles of his country; and had left that service only when the piping times of peace rendered it necessary to place England on a reduced war establishment; - then, and not till then, did he relinquish that honorable profession, in which gentlemen are not accustomed to brook insult; that school of honor the plaintiff left, when peace was proclaimed, to enter into the mercantile profession, in which he was filled offices of trust and importance. In this town Mr. Gilles was for a length of time Managing Director of one of our Banks, his duties were discharged with integrity, the highest esteem of his friends and the public at large. Mr. Gilles, having relinquished the arduous duties of that Bank, is now the managing partner of a highly respectable mercantile and banking house in this town - that, known by the firm of :"Archers, Gilles and Co." at the head of which is Mr. Thomas Archer, the highly respected and much esteemed member of the Legislative Council. Until now the finger of scorn had never reached his client. - until this most outrageous attack of the defendant on his client, his reputation stood high amongst all classes. It was not be endured that a gentleman so deservedly respected, should submit to the degradation which he would shew by evidence was the result of the libel complained of.

            It appears (continued the learned gentleman, addressing the jury) that in the month of June last Mrs. Gilles invited Mrs. Pugh to an entertainment, and forwarded the letter of invitation through the post-office, in the same manner that invitations to other parties were sent. Neither Mr. or Mrs. Pugh were present, nor did they condescend to acknowledge the receipt of the note of invitation. Mrs. Gilles felt annoyed at the discourtesy shewn to herk and mentioned the circumstance to a gentleman present at the evening party, who, on meeting Mr. Pugh the following day, repeated the remarks made by Mrs. Gilles. Shortly after this, Mr. Gilles received a letter from Mr. Pugh, in which he stated that Mrs. Pugh was in ignorance of the receipt of the note of invitation, and that it was not delivered to any member of his household. To this letter Mr. Gilles replied, that he had seen the letter written and sent to the post, and would make it his business to ascertain the cause of its non-delivery as addressed. Mr. Gilles (said the learned counsel) was perfectly convinced that Mrs. Pugh had received the letter, and set about to enquire, and ascertained that it had been delivered by a post messenger named Brown. This information Mr. Gilles communicated to Mr. Pugh by letter, and added that the note of invite was delivered to a woman, a member of his (Mr. Pugh's) household, who took it into a room and returned with 2d., which she paid the messenger for the postage. Mr. Gilles expected that the correspondence would have been confined to himself and Mr. Pugh; but he shortly afterwards received a letter from Mrs. Pugh, written during the absence of her husband, in which she stated that she did not receive the invite until after the evening on which the entertainment took place, and that its receipt was unknown to her, as the servant who took it in, paid the postage of it from money she always provided her servants to defray petty charges. From this small beginning the serious results, which I shall prove to you, followed. Previous to the misunderstanding I have briefly stated, a Club was formed in this town, of which many of the first gentlemen were members. Mr. Gilles was a member of the committee of this Club, for the guidance of which certain regulations were adopted. One of these regulations (No. 17) was to the effect that a complaint made by one member against another should be considered and determined by a general meeting of the members; in this case it had not been done. Mr. Gilles preferred a complaint against Mr. Pugh for ungentlemanly conduct; he laid his complaint before the committee, to the effect that Mr. Pugh had been guilty of ungentlemanly conduct; he (Mr. Gilles) stated that Mr. Pugh, as a member of the Club, had been guilty of conduct unbecoming the character of a gentleman, that, when proved against him, he had neither the candour to acknowledge his error, nor the spirit to justify his conduct. No one will say the charge was unjust liable under the rules of the Club. Mr. Pugh acknowledged its power to investigate the charge against him, by becoming a member of it. Mr. Pugh was bound to have submitted to the decision of the committee on the charge before he could call upon Mr. Gilles; but does he do it? No he left his wife's apron strings, under whose protection he had previously shielded himself, and became valiant. In the dead hour of the night his friend Mr. Sinclair, aroused Mr. Gilles from his bed and demanded satisfaction. Mr. Sinclair was the bearer of a letter from Mr. Pugh, addressed to Mr. Gilles, in which he writes, "I understand you have charged me before the Club with conduct derogatory to my character and standing in society, and I wish to know whether or not you have so done." Mr. Gilles hesitated of course to proceed in the affair until the result of the Club enquiry; and, gentlemen, Mr. Gilles was quite right in so doing. I would not, said the Attorney-General, plead the cause of my client, it I believed him tainted, by the laws of honor; my client, gentlemen referred Mr. Sinclair to the morrow for an answer to the communication he was the bearer of, and he was quite right in doing so - he was quite right in awaiting the result of the enquiry then pending on Mr. Pugh, for he did not know that it might not have placed Mr. Pugh in a condition in which he could not meet him. However, when daylight came, Mr. Gilles waited upon a man of honor, an officer in the army, whose character stands as high as that of any gentleman in Her Majesty's service, and requested him to act as his friend in the affair; but that gentleman, Captain Gardiner, was compelled to decline interfering in consequence of the public employment he holds. Mr. Gilles, then went to Captain Stewart, another officer in the army, who undertook the office solicited of him, but upon the understanding that his services would not be required until after the decision of the Club committee. Gentlemen, did Mr. Gilles show any cowardice in thus acting? Did he not do all that a man of honor could do under the circumstances?

            Gentlemen - In the course of the day, Mr. Sinclair called again upon Mr. Gilles to demand satisfaction, and when with him, the decision of the Club was received by Mr. Gilles. It was to the effect, that, the committee having considered the charges preferred by Mr. Gilles against Mr. Pugh, were unanimously of opinion that they were not borne out. It is true that the committee was unauthorized to investigate the charges at all - they should have been investigated by the whole Club - the committee, in fact, assumed the functions of the whole Club. He (the Attorney General) had no doubt that had the subject been considered by the entire Club, the decision would have been different; for on the occasion of Mr. Pugh dividing the Club on the question of the expulsion of Mr. Gilles, he lost his motion by an immense majority. When Mr. Gilles discovered that the committee had acted in so unwarrantable a manner, he threw up his office, and referred the matter to Captain Stewart, who, being well versed in the school of honor, did not depart from the propriety of conduct proper on such occasions. Where, gentlemen, was the cowardice of my client, in going from one officer to another, and placing his honor in their hands unconditionally? Contrast, said the learned gentlemen, the conduct of Mr. Gilles with that of Mr. Pugh - he who for twenty years has maintained a character unimpeached and unimpeachable. If Captain Stewart was wrong, Mr. Gilles was right. Mr. Gilles had placed himself in the hands of his friend unconditionally, and his friend did not think proper to let him meet Mr. Pugh under the circumstances. Captain Stewart considered that Mr. Pugh was not entitled to challenge, - he was guilty of tergiversation, - he had been shifting the matter between himself and Mrs. Pugh, - he had disentitled himself to demand satisfaction. Another reason operated on the mind of Captain Stewart; he considered that Mr. Pugh was not in a condition to challenge Mr. Gilles, having refused to meet a gentleman of his own profession, whom he had deeply injured. Under such circumstances, had he (the learned counsel) been acting for his client, as was Captain Stewart, rather than permitted him to have gone to the ground, he would have gone there himself. There was no apology for Mr. Pugh; he had no right to brand Mr. Gilles a liar and a coward, because the gentlemen of the Club considered that the charges he had preferred against Mr. Pugh were disproved.

The Attorney General read the following passage from an English newspaper, which applied to the case before the jury:-

            "In the Court of Queen's Bench today, the Lord Chief Justice gave two judgments which have been looked for with some interest. When Sir Alexander Grant was a candidate for Cambridge, a local paper attacked him in a very violent manner, especially to his having been a slave owner. On the bustings, Sir Alexander retorted by a coarse attack on the personal character of the editor, Mr. Sheehan, Sir John Milley Doyle, as a friend of Mr. Sheehan, sought to arrange a hostile meeting or an apology on the part of Sir Alexander; but the latter, acting by the advice of Lord Granville Somerset and Sir Henry Hurdinge, held back. Sir John then published a letter having a tendency to provoke a challenge from Sir Alexander to himself. Sir Alexander sought the protection of the law, and his counsel moved for a rule to shew cause why a criminal information should not be filed against Sir John Doyle and Mr. Sheehan. Lord Denman now adjudged that Sir John Doyle had acted unwarrantably in treating Sir Alexander Grant as a disgraced man, when he hadsubmitted his case to two of the most honorable men in the kingdom, and that the rule against him must therefore be made absolute."

            His Honor the Chief Justice here made a few observations, which we could not distinctly bear; we believe, however, they were to the effect, that he could not sit on the bench as a magistrate, whatever were his private feelings, to hear the practice of duelling vindicated - that the course the defendant had adopted, put it out of his power to prove that plaintiff was a coward and a liar, and that plaintiff, therefore, could not give evidence to prove the contrary.

The Attorney General regretted that the defendant had thrown himself behind the law to shield him from an open and fair investigation.

[Various correspondence was put in and read as likewise the alleged libel, the charge as preferred by Mr. Gilles against Mr. Pugh before the Club and the Club rules.]

After which, Mr. Macdowell having admitted the libel and its publication for the Clubroom and in the streets, the following evidence was heard:-

John Sinclair. - I was a member of the Launceston Club prior to the posting of that placard; both plaintiff and defendant were members, I have known plaintiff about fourteen years, he was managing director of one of the Banks, I was upon visiting terms with him ten or twelve years ago, but for ten years we have not been on visiting terms; In June last I was upon such terms to accept his hospitality, it was the first time for ten years; I seceded from the Club shortly after the publication of the libel, I did cut Mr. Gilles after the publication of the libel, it was partly my reason, in consequence of seeing him posted, but I have arrived at the conclusion before.

            By Mr. McDowell - I have before seen that correspondence read in court. I had not seen but I had heard of a communication made by Mr. Gilles to the Club, this is the document (produced); I see a paragraph which states that Mr. Pugh had stated something contrary to the truth and had not the candour to acknowledge his error or the spirit to justify his conduct; by this I should think plaintiff meant that defendant should call him out.

            Dr. Richardson examined by the Attorney General. - As a member of the medical profession by education, was a member of the Launceston Club in July last. Plaintiff was also a member; I heard that Mr. Pugh had posted Mr. Gilles as a liar and a coward is the streets; I considered that the character of Mr. Gilles became degraded by this publication; I have known Mr. Gilles for about three years, I was not on visiting terms with him, never having entered his house but once in my life, occasionally I have met him at the Club, and was on terms of acquaintance with him there; at a general meeting of the Club, it was proposed whether Mr. Gilles should be expelled or not; the proposal was made by Mr. Pugh; it was not in consequence of this libel that I ceased associating with Mr. Gilles, my mind was made up before; I have seceded from the Club, my motive for so doing was because Mr. Gilles was allowed to remain a member; I do not allude to the placard but I should be influenced in my conduct by the libel.

            By Mr Macdowell. -Previously to the publication of the placard, I had determined to be no longer acquainted with Mr. Gilles.

            M. Connolly, Esq. - I was a member of the club. I was acquainted with Mr. and Mrs. Gilles in the month of June last. I was at a ball given by them. Dr. Pugh and his lady were not there. Mrs. Gilles told me she had not received an answer to an invitation sent to Mrs. Pugh by her. The next day I mentioned it to Dr. Pugh, who said that Mrs. Pugh had not received an invitation, to his knowledge, but if she had she would be more particular in replying to it than to a more intimate acquaintance. I was at that time a member of the committee of the club. The committee decided a charge made by Mr. Gilles against Mr. Pugh, under the 17th Rule; I seceded from the club after the publication of the placard. I have ceased to hold Mr. Gilles an acquaintance; I consider Mr. Gilles' character degraded by the placard; that, coupled with other matters brought forward at the general meeting relative to the affair between him and Mr. Pugh, I voted against him, and ceased to be acquainted; but all that I know against him is connected with the quarrel between himself and Mr. Pugh. I have known Mr. Gilles upwards of thirteen years, during which period I was on very intimate terms with him, and considered him a man of honour. I know Mr. Edward Bryant; I requested him to tell Mr. Gilles, that having voted against him. I should leave the club. I considered him degraded, and therefore cut him. Coupled with other matters, I considered him regraded by the placard.

(Case concluded on part of plaintiff.)

            Mr. Macdowell appeared on the part of the defendant. The learned gentleman remarked that he would occupy but little of the time of the Court, nor produce witnesses for the defence, feeling assured that the evidence produced on the part of the plaintiff perfectly satisfied the jury, that they could not be called upon to try a more causeless action. He thought at one time that the affair of the Captain's, and the Club was a matter of some little moment, but it had narrowed itself within a very small compass; the fact was, as it must be evident to every person who had heard the evidence, that the plaintiff had brought about all the mischief complained of, by his own conduct, the plaintiff had come to the conclusion that he must insult the defendant - in short Mr. Lewis Gilles' object was to provoke Dr. Pugh. I have heard, said the learned gentleman, the learned counsel for the plaintiff, exceedingly eloquent in describing the laws of honor, he professes to be a great admirer of the principles taught in the school at home; I am not desirous to learn according to the principles laid down by the learned gentleman; I desire to act upon those principles which are learnt in the school of ordinary courtesy which makes life agreeable; I cannot conceive any conduct to be more discourteous than that pursued by Mr. Gilles towards Mr. :Pugh - and that gentlemen, must be your opinion, for notwithstanding all that the learned Attorney-General has said on behalf of his client, about the bravery of his earlier years, notwithstanding all that he has said about his client's Bank, and about his client's ability to control the financial condition of Launceston, he has not produced one witness, who has not in fact said, that the conduct he complains of "serves him right." Mr. Connolly has known him for many years, he has been on most intimate terms with him, he has been one of his dearest and longest standing friends, and he has told you this day, that in consequence of his conduct in this affair, he determined no longer to know him. You have gentlemen, distinct evidence before you that Mr. Gilles has brought upon himself, that conduct, of which he comes here this day to complain. Mr. Gilles, gentlemen, has shewn a disposition throughout to annoy and insult Mr. Pugh. Am I to be told gentlemen, that a man must passively brook insult; that he is tacitly to submit to be accused of having stated a falsity, and to want the candour to admit it, and the spirit to resent it? As the Attorney General remarked, trivial things produce mighty results the trivial occasion for Mr. Gilles to complain, has produced this mighty contest; Mrs. Gilles told Mr. Connolly that she was dissatisfied at the absence of courtesy on the part of Mrs. Pugh; Mr. Connolly very properly mentioned the circumstance to Mr. Pugh when he met him, and Mr. Pugh immediately explained away as he thought, to Mr. Gilles the occasion for the misunderstanding. Was not that gentlemen of the jury enough? In every reasonable mind it must be so considered. Mr. Gilles can, as indeed he has instructed his counsel, say that he has been insulted, but that does not prove that he was insulted without seeking for insult! Mr. Gilles goes about looking for insult; he is like the Whigs of old, who not content with knocking their heads against the walls, built walls to knock their heads against. From the evidence you have heard gentlemen, you cannot fail to be satisfied, that Mr. Gilles has brought all that he complains of on his own head; he has been determined to provoke my client, he has determined to insult him, and he has done so effectually. He has always been in a passion, yet desirous to make it appear that he was quite collected. He reminds me of a tale I have heard of an old gentleman, who, when engaged in dispute with his son, and displaying much warmth of temper, exclaimed, "Damme, ye dog, why ain't ye cool, like me!" Gentlemen, if you will view the evidence adduced by the plaintiff in this action, you will see that every witness has agreed upon one point; every witness has cut Mr. Gilles, but not perhaps in consequence of the posting, although that circumstance may have operated with others to induce such determination. Mr. Sinclair has known the plaintiff for many years - once in ten years he dined with him - some such a period as was occupied in the siege ofTroy! but, gentlemen, you have the evidence before you, and you will give it your serious consideration. I am not, as the learned counsel for the plaintiff avers he is, versed in the school of honor, if it sanction the gratuitous seeking of quarrels and giving insults. My schooling has been received in the ordinary course of life, and I am sure that Mr. Gilles should have been satisfied with the first letter written to him by Mr. Pugh, in which he denied having received the letter whether he had received it or not; Mr. Gilles' after not was a proceeding wholly unjustifiable. I repeat, Mr. Gilles should have been satisfied with Mr. Pugh's distinct denial of the receipt of the letter of invitation; and, indeed, I am quite satisfied, from the simplicity in which Mr. Pugh's letter is couched, that it is quite true; Gentlemen, it is evident, from the conduct - pursued by Mr. Gilles towards Mr. Pugh, that nothing short of his rule was contemplated by him. It is impossible to read Mr. Gilles' letter to the club, charging Mr. Pugh, without feeling assured that he was guilty of want of veracity and deficient in courage. This is not proved, nor can it be suspected. If the club committee was wrong in taking upon itself the consideration of the charge; it is no fault of Mr. Pugh's; the fact is, that the charge preferred by Mr. Gilles against Mr. Pugh is foundationless - it is baseless. The learned Attorney-General, on behalf of his client, has stated, that upon the occasion of Mr. Pugh moving at the club for Mr. Gilles' expulsion, there was an overwhelming majority in his favour, in easy of explanation. It is a fact that many noble-minded men voted for Mr. Gilles, from weakness, although they knew that he was wrong. Gentlemen, the excuse of Mr. Gilles for not meeting Mr. Pugh is worthy of your consideration. Mr. Pugh was not in time, the time had elapsed; but, gentlemen, recollect that he was taunted with having told a lie, which, when discovered, he wanted the candour to acknowledge, and the spirit to justify; recollect that taunt, gentlemen of the jury, and you will not fail to place it to the credit of my client; you will not admit the possibility of a gentleman holding up his head in society, and submitting to such degradation. Gentlemen, I am aware that, in law, there is no excuse for my client; but, gentlemen, should there be protection for a man who looks out for insult, who seeks it, and who afterwards appeals to the law for redress. The learned Attorney General has quoted a paragraph from a newspaper, purporting to be a report of a decision given by Lord Denman in a case in which a rule was applied for, to shew cause why a criminal information should not be filed against a party for inciting another to fight a duel, and he said that his lordship had proved himself to be a man of honor. True it is, that Lord Denman is a man of honor - he is an ornament to the honorable profession in which he stands so high, and is a man of honor in every relation of life, but not in the sense the Attorney General would imply, - not in the way the Red Indian warrior would be estimated, by the number of scalps he could show in his hut, as the proof of the number of victims he had sacrificed; not such a man of honor is Lord Denman, and Mr. Macdowell paid the humble tribute to his lordship's worth, with whom he was personally and intimately acquainted. He (the learned counsel) had little more to remark. Mr. Gilles had invoked and diligently labored for the reward he sought, - as he had sown, so let him reap, - the smallest damages would be an equivalent for all the ills he had sustained, and he would leave the case in the hands of the jury with the fullest confidence. He would not call witnesses, because those called by the counsel for the plaintiff proved that however high men might be in society - however exalted they might be, despotism exercised by them either in public or private life could not and would not be countenanced. A more despotic temper than that displayed by Mr. Gilles could not be, and he (the learned counsel) had full assurance that the calm and conscientious verdict of the jury would teach him, and every other despotic character, that the well known principle on which society acts, will be upheld in this community; and that no public or private power, however great, can with impunity attempt the sacrifice of individuals of the community or sections of the community. I leave, said Mr. Macdowell, the character of the plaintiff and the defendant in the hands of the jury - the whole affair, from its paltry commencement to its important termination; and I sincerely regret, that the sad temper of the plaintiff has urged him to seek damages here for his own act. However, gentlemen of the jury, you will teach the plaintiff a lesson for the future not to proceed against any individual with the unmitigated hostility he has shewn in this action.

His Honor the Chief Justice summed up the evidence with a precision and clearness that must have satisfied the mind of every bearer. His Honor commenced by reading the libel which was admitted, as well as the posting, for which His Honor stated a verdict must go for the plaintiff, but it was for the jury to assess the amount of damages. His Honor feelingly expressed his regret that such a circumstance should be the means of breaking up an establishment, formed for the advantage of the community, the advancement of social intercourse was stopped by the breaking up of the Club, and the best interests of society destroyed; and His Honor, as well as every well-wisher to society, must regret that from so trivial a cause such a mischief should have resulted. It should be the duty of the jury to weigh the case well from its origin up to the publication of the libel. The object of Mr. Gilles was no doubt to drive Mr. Pugh from the Club. His Honor had no doubt that the letter of Mr. Gilles to the Club was a libel, but he did not wish to say whether the conduct of the committee was right or wrong; with that His Honor did not think it his duty to interfere.

His Honor though it fair matter for the consideration of the Jury, whether or not it was a great provocation, and the charge made upon such grounds, of course the provocation would diminish the damages, but to what extent, if at all - that would be for the jury to decide. There were many topics brought under consideration, which His Honor, sitting as a judge could not go into, His Honor would place the correspondence &c., in the hands of the jury, and they would accordingly assess the amount of damages.

The jury retired for about ten minutes, and returned a verdict for the plaintiff - "One farthing damages." In answer to a question put by the foreman, His Honor stated that each party would pay his own costs.

While the jury in the above case was retired, Mr. Clifford prayed His Honor to receive from him a petition complaining of the practice of Lynch Law in Launceston. His Honor received it courteously and promised to give it his attention.

Pedder C.J., 6 October 1842

Source: Launceston Examiner8 October 1842

Before His Honor the Chief Justice, and the following jury: - E. Dumaresq, foreman, W. Williamson, J. Morrison, J. Robertson, W. G. Walker, J. Perkins, A. Anderson, J. Henty, T. Walker, F. Spencer, G. M. Eddie, J. G. Campbell.

            Giles v Pugh. - For libel and defamation of character - damages, £2,000. For the plaintiff, the Attorney-General and Mr. Walford; for the defendant, Mr. Macdowell and Mr. Gleadow.

            The Attorney-General said, that his client came before the jury to obtain damages for injuries sustained from Dr. Pugh; the quarrel originated from very small beginnings. In the month of June, Mrs. Gilles gave an evening party and ball, to which she invited Mr. and Mrs. Pugh, but they neither went nor sent an answer to the invitation. In the course of the evening Mrs. Gilles remarked to Mr. Connolly that she thought it very strange Mrs. Pugh had not come or sent an apology; next day Mr. Connolly met Dr. Pugh and mentioned to him what he had heard; Dr. Pugh denied having received Mrs. Gilles' note, and wrote a letter to that effect to Mr. Gilles, who had every reason to doubt what Dr. Pugh asserted, as he had sent the note along with others to the post-office; Mr. Gilles went to the postmaster who assured him that the letter was sent, and the post-messenger stated that he gave the note to a servant woman, who took it into a room and returned with the postage-money, two pence. Mr. Gilles then wrote a note stating this to Dr. Pugh, and received an answer from Mrs. Pugh, (the doctor being absent from home) who said that she was in the habit of giving money to the servants to pay postages and other small expenses, she also stated in her letter that the note Mrs. Gilles sent had been found; she had sent a servant to the parlour for some periodicals, when the note dropped out. Mr. Gilles having reason to doubt Dr. Pugh's assertion that the note had never been received, and that what he stated was false, wrote to the committee of the Launceston Club, stating that Dr. Pugh had been guilty of tergiversation and of actions derogatory to the character of a gentleman. Dr. Pugh hearing of this, sent Mr. Sinclair, at the unusual hour of twelve o'clock at night, demanding an explanation from Mr. Gilles, who, not having heard the result of the meeting of the committee, refused to afford any. Mr. Gilles early next morning called upon Capt. Gardner to ask his opinion, he, on account of the station he occupies in this town, referred him to Capt. Stewart, and on Mr. Sinclair calling again Mr. Gilles referred him to that gentleman. In the mean time, Mr. Gilles received a note from the secretary of the club stating that what he had alleged against Dr. Pugh was not substantiated; this, the Attorney-General said, was what the committee had not power to do, as by the seventeenth rule of the club they ought to have laid the matter before the whole of the members. Dr. Pugh then put up a paper in the club-house, stating that Mr. Gilles had accused him of tergiversation and of actions derogatory to the character of a gentleman, which he had failed to prove and as he would neither give him an explanation nor a meeting, he was a liar and a coward; a note to the same effect was posted by Dr. Pugh himself on the outside of the club-house; the Attorney-General stated, that in consequence of these notes Mr. Gilles had suffered in reputation and character, and was shunned by many of his friends; to prove this he would call witnesses, and leave the case in the hands of the jury.

            The plaintiff produced the following in evidence:- "17.  Any member wilfully infringing the rules and regulations of the club, or whose conduct, in or out of the club, after his election, shall, in the opinion of the committee, be derogatory to his station in society, shall be subject to expulsion under the award of a general meeting, which it shall be the duty of the committee to expressly convene, for the purpose of investigating the charges brought against such member; the opinion of such general meeting shall be obtained by ballot, when, if two-thirds of the members present at such general meeting decide that the offending member has merited expulsion, he shall thereon cease to be a member of the club; his subscription for the current year being forfeited." - Rules of Launceston Club.

            "SIR. - Having learned that Mrs. Pugh is supposed to have been guilty of a breach of civility in not replying to a note addressed to her by Mrs. Gilles, I beg to state that Mrs. Pugh is in ignorance of having been thus addressed by Mrs. Gilles, and that no member of my establishment is aware of the delivery of such a note. - I am, yours, &c.

                                                                                                " W. R. PUGH

"Friday morning.

            "P. S. Mrs. Pugh's confinement to her bed is an apology for my addressing you.

                                                                                                "W. R. P.

            "L. W. Gilles, Esq.

_____________

            "SIR. - I have to acknowledge a note from you, dated this morning, intimating that no invitation from Mrs. Gilles, addressed to Mrs. Pugh, had been received by any member of your establishment. I read the invitation myself; it was enclosed in an envelope, together with one for Miss Kearton; I sent it with the others by the same messenger to the post-office, to the best of my belief, and the reason it did not reach its destination I shall endeavour to elicit. Your assertion that the note did not reach your residence, however unfortunate, is sufficient; and both Mrs. Gilles and I would have extremely regretted the circumstance but that the tone of your note has deprived us of even this gratification - I am, your's obediently,

"LEWIS W. GILLES

            Friday afternoon - W. Russ Pugh, Esq.

___________

            "I hereby certify that a letter addressed to Mrs. Pugh, and put into the letter box on Thursday, the 26th ult., was sent out by the usual messenger on that day, and delivered as addressed.

            "ST. JOHN E. BROWNE, Postmaster,

"Post-office, Launceston, June 11, 1842"

____________

Brisbane-street, June 14, 1842

            "SIR. - I have now ascertained, in addition to Mr. Browne's memorandum, that the note in question was delivered by William Brown, Post-office messenger, at your house to the servant woman (a member, I presume, of your establishment) who carried it into a room and returned with the postage, 2d. - Your's obediently.

                                                                                                            "LEWIS W. GILLES

            "W. R. Pugh, Esq."

            "As Mr. Pugh is absent from home, and probably may not be returned for some hours, Mrs. Pugh, in order to prevent any unnecessary suspense to Mr. Gilles, begs to state that all postage in her house is paid in a similar manner to the one Mr. Gilles describes, as she leaves money at all times with her servants to defray all such small charges.

            Mrs. Pugh begs to repeat that she had never heard of nor received the note Mrs. Gilles did her the honor to send till long after Mrs. Gilles' party had taken place; but to save Mr. Gilles all further trouble, Mrs. Pugh informs him that she has since seen the note drop from among some periodicals which one of her servants was in the act of handing to her, and which she had desired should be fetched from the drawing-room into her own sleeping apartment. Mr. Pugh would have informed the post-office of this circumstance, had not Mr. Browne's certificate exculpated that establishment from all blame. Had either Mr. or Mrs. Gilles named to Mr. Pugh, on the day they last met the politeness intended, Mr. Pugh would have caused a diligent search to have been made.

            " L. W. Gilles, Esq."

__________

            "Mr. Gilles has the honor to acknowledge the receipt of Mrs. Pugh's note, and to state that he was in no degree of suspense whatever, but would have waited for Mr. Pugh's arriving, both to open and reply to Mr. G's. note of this morning's date. Mr. G. is however happy to discover there has been no mistake in the delivery of Mrs. Gilles' invitation.

            "Mrs. Pugh, St. John street."

__________

            "SIR. - I am informed that you have charged me before the committee of the Launceston Club with conduct unbecoming a gentleman and derogatory to my station in society. I request to know if such be the case. - I am, sir, your obedient servant,

                                                                                                            "W. R. PUGH

            "L. W. Gilles, Esq."

__________

            Launceston, July 5, 1842

"I charge Mr. W. R. Pugh, as a member of this club, with conduct unbecoming a gentleman, and derogatory to his station in society; he, the said W. R. Pugh, having made an assertion which was contrary to the fact, and, when found to be unfounded, that he (Mr. Pugh) had neither the candour to admit his error, or the spirit to justify his behaviour.

                                                                                                            LEWIS W. GILLES

            "The Secretary of the Launceston Club"

__________

            "The committee having taken into consideration the charge brought by Mr. L. W. Gilles against Mr. W. R. Pugh, and carefully examined the evidence produced, are unanimously of opinion that the charge has not been borne out.

__________

            "Mr. Lewis William Gilles having instituted charges against me derogatory to my character, which he has failed to substantiate, and having refused to afford me satisfaction, I hereby proclaim him a COWARD and a LIAR!

                                                                                                            W. R. PUGH

            "July 8, 1842"

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            John Sinclair. - Was prior to the posting a member of the club Messrs. Gilles and Pugh were both members; has known plaintiff fourteen years, he was the managing director of one of the banks; was on visiting terms twelve years ago; was not for ten years; I accepted the offer of Mrs. and Mr. Gilles in June last, the first time for ten years; I ceased to be a member of the club shortly after the libel, and after that cut Mr. Gilles; it was partly by reason of the placarding, but before that I came to the conclusion.

            Cross-examined. - Before cutting Mr. Gilles had seen the correspondence, had also heard of the communication made by Mr. Gilles to club; saw a passage there to the effect that [reads charge], the meaning I should put upon this is that Mr. Gilles thought Mr. Pugh out to call him out.

            D. Richardson. - Was a member of the club in June last; Gilles was also; recollects hearing that Pugh had posted Gilles in the street; considered that Mr. Gilles' character became degraded by that publication; had known Gilles three or four years before that; I never visited Gilles, never went to his house but once; occasionally met him at the club on terms of acquaintance; it was proposed that the club should decide whether Gilles should be expelled or not, the proposal was made by Pugh; it was not in consequence of the libel that I shunned Gilles, my mind was made up before; I have ceceded from the club, my cecession from the club was in consequence of their allowing Gilles to remain a member; it was not in consequence of the libel, but I should be influenced by it.

            Cross-examined. - Before hearing of libel, had determined on no longer being acquainted with Gilles.

            Michael Connolly. - I was a member of the club, and acquainted with Mr. and Mrs. Gilles in June last; I was at an entertainment given by them in June last, Dr. Pugh and his lady were not there; Mrs. Gilles stated during the evening that Dr. Pugh and his lady had been invited, but had not answered the note; the next day I mentioned the circumstance to Dr. Pugh, who replied Mrs. Pugh had not received the invitation; if they had they would have been very particular in replying to it, even more so than with any of their more intimate acquaintance; I was a member of the committee; the committee considered themselves entitled to dispose of the charge made by Mr. Gilles against Dr. Pugh; it was under the seventeenth rule we decided that charge; ceceded from club after the general meeting, which did not take place until after the placarding; I have ceased to hold Gilles as an acquaintance; I considered Mr. G. degraded by submitting to the placard, and that with other matters that were brought forward between Gilles and Pugh induced me to vote against Gilles; I ceased to know him; all those matters related to the subject of the correspondence; I had known Gilles thirteen years before, and was on intimate terms with him; knows E. Bryant and told him my reason for ceceding from the club, and requested him to tell Mr. Gilles, that I could no longer be on terms with him, and he repeated the reasons I have given for coming to that determination.

            Mr. Macdowell, who appeared for the defendant, delivered an eloquent address. - Never was a more causeless action submitted to a jury; it was not necessary for him to call witnesses in favour of the defendant; he should rely with confidence on the opinion which they would pronounce on the case, as brought under their notice by the Attorney-General. It would be necessary to recall their attention to the correspondence, which had been produced in court; Mr. Gilles, in June last, it appears had given an entertainment, and among the parties invited were Mr. and Mrs. Pugh; it would appear from the testimony of Mr. Connolly that Mrs. Gilles remarked to him that an invitation had been forwarded to Dr. Pugh, and had received no answer. Mr. Connolly conceiving the slight was unintentional, on the following day when he saw Mr. Pugh, mentioned the circumstance to him; and what does Mr. Pugh say in reply? That no invitation had been received, and that if there had, he should have been more attentive in replying than to the invitation of a more intimate acquaintance; and in consequence of that conversation Dr. Pugh immediately addressed a note to Mr. Gilles assuring him that neither he nor Mrs. Pugh had received the invitation. This, gentlemen, ought to have satisfied the plaintiff that no discourtesy was intended by Dr. Pugh; it was perhaps not his place according to rules of etiquette to write that note; generally, and it is better it should be so, such affairs are transacted by the ladies, but it shewed on the part of Dr. Pugh an eagerness to avoid the suspicion of discourtesy towards a gentleman with whom he was not on terms of very close intimacy; here the matter ought to have dropped; on account of the post office it might have been right to have enquired after the note, but according to the custom of society, whether that note had been received or not, he was bound to believe that no insult was intended. He, Mr. Macdowell, was able to prove that the note had not then reached the hand of the defendant or his lady, but if it had those customs he had referred to would require Mr. Gilles to accept the statement tendered by Dr. Pugh. (Mr. Macdowell then referred to Mrs. Opie's opinion on the questionable morality of polite equivocation.) Mr. Gilles was determined to fix on Dr. Pugh the charge of falsehood, and not content with bringing forward Mr. St. John E. Browne and the other Brown to certify the delivery of the said note, he also found out that the servant paid the postage. Gentlemen, this note was found afterwards, having dropped from a periodical brought to Mrs. Pugh by a servant, and that lady hastened to inform Mr. Gilles of the circumstance to relieve him from suspense; they would observe the sneering reply of Mr. Gilles to that communication - repeating the words employed by Mrs. Pugh - "that he was in no suspense." Mr. Gilles was determined to be insulted - he would be insulted - it was no matter what Mr. and Mrs. Pugh intended, he was resolved to be insulted. Mr. Gilles reminded him (Mr. Macdowell) of an observation made by Sheridan in reference to the whigs who, not content with knocking their heads against a wall, built walls to knock their heads against. Mr. Gilles then lays before the club a serious charge of falsehood against the defendant - a charge designed to ruin his reputation, and to degrade his family - and when Dr. Pugh sends his friend, Mr. Sinclair, to demand an explanation or satisfaction, what does Mr. Gilles say? he says "no doubt I would have fought some time ago, but now it is too late: Dr. Pugh had allowed himself to receive, without claiming satisfaction, the accusations of Mr. Gilles conveyed in his note, and therefore his friend Captain Stewart thought the time had gone by for fighting." Mr. Macdowell then proceeded to describe the plaintiff in terms rather too strong for the eye of her Majesty's Attorney-General, and which we are, therefore, reluctantly compelled to mollify. He observed that the learned counsel had dwelt on the determination of the club, when Dr. Pugh proposed Mr. G.'s expulsion, and argued that had Dr. Pugh been subjected to a vote of the whole club instead of a committee, the result would have been different; but he would ask the gentlemen of the jury if they could perceive an analogy in the two cases; there were many reasons why gentlemen belonging to the club might not be prepared to expel Mr. Gilles; he might be of so despotic a temper, that the weakness he referred to in some members of the club could be easily accounted for and excused. Among the three witnesses produced for the plaintiff, two had dined at his table once only in ten years - a most moderate scale of giving dinners. The gentlemen of the jury would remember that the publication was admitted, and if they found, as he feared they must, that the imputation of lying and cowardice was a libel, they would then say if the smallest coin would not be all that was due to the plaintiff. Mr. Macdowell then alluded to the principle of re-action which is always found in society - a principle which, sooner or later, arouses resistance to despotism - whether in public bodies or individuals. They would look at the letters, and discern a determination to ruin the defendant; their verdict, he did not doubt, would accord with the general feeling of society in this case; not an ill-digested feeling, but that strong and natural sympathy which all men feel in behalf of the oppressed.

The Attorney-General objected to anything contained in the letters of Mr. Gilles being received as libels, or in justification; the defendant having pleaded the general issue.

His Honor in charging the jury observed, that as the publication was admitted, the only question for their consideration was the amount of damages due to the plaintiff; to impute to a man that he was a coward and a liar was undoubtedly libellous, but he, the Chief Justice, could not help expressing his deep regret that trifles should have broken up a club which he thought likely to be useful to the community and promote harmony in society. He thought, however, that the jury must take into consideration the letters put in not to justify, the defendant, but to determine the amount of damages due to the plaintiff.

The jury, after a few minutes consultation, returned into court with a verdict for the plaintiff - damages, ONE FARTHING.

Notes

[1]          See also Launceston Courier10 October 1842; Launceston Advertiser13 October 1842.

            Lewis Gilles was an ex-naval officer,  former bank manager and merchant, see H.Gibbney and A.G. Smith (comps), A Biographical Register 1788-1939, vol. 1, pp. 262-3; William Russ Pugh was the first doctor in Australia successfully to use anaesthesia in surgery, see C. Craig, 'William Russ Pugh (1805?-1897)', ADB, vol. 2, p. 355.

 

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania