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STUDIES IN
AUSTRALIAN CRIME

BY

JOHN D. FITZGERALD

HENRY LOUIS BERTRAND

I

IN the criminal history of Australia, the case of Henry Louis Bertrand, convicted of the murder of Henry Kinder at North Shore, Sydney, New South Wales, in the year 1865, is probably the most remarkable. It contains a variety of features of great interest to the criminal lawyer, the physician, and the general reader. The crime was of an extraordinary character, and Bertrand stands in a class by himself, as a comparison with the criminals studied by Alexandre Dumas, H.B. Irving and Alfred Bataille will show. The proceedings at the trial furnished a leading case in criminal procedure, decided by the Privy Council on appeal from the Supreme Court of New South Wales. The reprieve of the prisoner, who deserved exemplary punishment, followed upon a recommendation of the Privy Council itself. The names of many great judges and counsel appear in connection with the case, both in the local courts and in the highest appellate tribunal of the Empire.

  The strange conduct of various persons surrounding the protagonist in this drama of lust and murder occasioned a theory that Bertrand had what would now be called "hypnotic" powers, and that, by the exercise of these powers, he obtained control over the wife of his victim; over his own wife, whom he intended to kill in order to marry Mrs. Kinder (with whom he was carrying on an intrigue); over his sister, Mrs. Kerr, and his assistant, a young man twenty years old.

  At the time a rumour was current that a diary kept by the murderer exhibited traits in his character that could only be accounted for after a perusal of Krafft-Ebing's Psychopathia Sexualis. One diary, at any rate, was found, and from it I shall quote extensively.

  Again, the case was remarkable for the two trials of Bertrand. In the first, the jury disagreed; in the second, the procedure adopted by the Chief justice (Sir Alfred Stephen) in regard to the mode of examining witnesses who had testified at the first trial was challenged, and the Privy Council had to decide the matter.

  Another remarkable feature of the case was the production at the trial of a series of passionate love letters written by Mrs. Kinder to Bertrand after the murder, and of the strange and melodramatic diary which he began on the 26th of October, 1865, and continued till his arrest. The opening lines of the diary are quite in the style of Bulwer Lytton:

  "Thursday, 26th. Lonely! Lonely! Lonely! She is gone I am alone. O my God, did I ever think or dream of such agony! I am bound to appear calm: so much the worse. I do so hate all mankind. I feel as if every kindly feeling has gone with her. Ellen, dearest Ellen, I thank, I dare to thank God, for the happiness of our last few moments. Surely He could not forsake us, and yet favour us as He has done. Tears stream from my eyes; they relieve the burning anguish of my breaking heart. Oh, how shall I outlive twelve long months? Child -- I love thee passionately -- aye madly! I knew not how much till thou wert gone. And yet I am calm. 'Tis as the dead silence that preludes the tempest. What fierce passions are contending in my breast! Love, jealousy, revenge, hate, and unappeased rage! Can I ever be good? I will try, since my love wishes it. Dearest child, what would I not do for you, my wife in heart, soul, and spirit! Angel of love, star that hath illumined my dark existence, I am grateful, ever grateful, for the intense happiness you have caused me. Oh, darling love, give me by thy future life faith, new sterling faith in thee. Thou art all I possess both in this life and in the next. Do not rouse the demon that I know lies dormant within me. Beware how you trifle with my love. I am no base slave to be played with or cast off as a toy. I am terrible in my vengeance, terrible, for I call on the powers of hell to aid their master in his dire vengeance. God, what am I saying. Do not fear me, darling love; I would not harm thee -- not thy dear self, but only sweep away, as with a scimitar, my enemies, or those who would step between thy love and me . . . . "

  Her letters, which he carefully preserved (though she, more cunning, destroyed his, all save one), and his diary, contained admissions which helped the prosecution to build up the case.

  

  I have before me some old-fashioned photographs of the chief actors in this terrible drama. The first is a group comprising the victim, Henry Kinder and his wife. Mr. Kinder appears in this photograph as a tall, well-dressed man of thirty-five, full-bearded, his hair thinning slightly on the forehead -- handsome, but with a weak amiability of expression. Mrs. Kinder is tall, and (so far as a photograph can show) not particularly attractive, with a stern, domineering countenance. She is dressed in the extravagant style of the mid-Victorian period -- wide crinoline and ample shawl, her netted hair surmounted by a flat bonnet, and at her neck a large bow of wide ribbon.

  Another photograph conveys the impression that Mrs. Bertrand was quite a pretty woman; at the time she was only about twenty years of age. Bertrand is a short, Jewish-looking man of twenty-five, with a profusion of dark curly hair parted in the centre, a short moustache, clean-shaven chin, and dark whiskers.

 

II

THE sequence of facts, as they came before the Australian public, is as follows:

  (I) An inquest was held by the Coroner in Sydney on the body of a man named Henry Kinder who died on Friday, October 6, 1865, at his house at North Sydney. There were four witnesses -- Mrs. Kinder, the widow; Henry Louis Bertrand, dentist, a friend of the family; Dr. Eichler, the physician who attended Kinder; and Mr. Cooper, a colleague on the staff of the bank where Kinder was employed. The evidence was to the effect that Kinder shot himself with a pistol, his wife, Bertrand, and Mrs. Bertrand being in the room at the time.

  Bertrand swore that he saw Kinder shoot himself behind the right ear.

  Dr. Eichler deposed that, from the circumstances surrounding the case, it was clear that the injuries were self-inflicted.

  The Coroner's jury returned a verdict that Kinder committed suicide while temporarily insane.

  (2) Not long after, Bertrand prosecuted a man named Jackson who had written him a letter demanding money; failing payment, he said, he would denounce Bertrand to the police in connection with Kinder's death. Bertrand gave the letter to the police. Jackson was arrested and charged with blackmail, tried, convicted, and sentenced to a year's imprisonment.

  (3) Late in November, Bertrand, Mrs. Bertrand, and Mrs. Kinder were arrested and charged with the murder of Kinder. The charge against the two women was not proceeded with; Bertrand was committed for trial, and arraigned at Darlinghurst Court House.

  

  Henry Louis Bertrand began to practise as a dentist in Hunter-street, Sydney, about three years before the crime was committed. Success led him to remove to Wynyard Square, then the fashionable dentists' quarter. He married a Miss Palmer, after considerable opposition from her step-father-who thought him "a bad man" -- and they had two children. At the Wynyard Square surgery he first met Mrs. Kinder. Her husband, Henry Kinder, was a Londoner who had emigrated to New Zealand and obtained employment in the Union Bank, and afterwards in the Bank of New Zealand. There he met and married his wife. Their family consisted of two children. After three years in New Zealand the Kinders came to Sydney, where Mr. Kinder became chief teller in the City Bank. Mrs. Kinder made the acquaintance of Bertrand about nine months before the murder, by consulting him professionally. An intrigue appears to have begun almost at once. The families appear subsequently to have formed an intimacy, and Mrs. Bertrand, as well as her husband visited the Kinders' home, a substantial stone cottage at North Shore.

  Kinder was, as the evidence showed, prone to excessive indulgence in liquor, but was otherwise "a clever man of business, and an exceedingly good teller," according to the testimony of the bank officials. He was, moreover, a man of good education, and spoke German fluently, having been at school in Germany. Owing to his drinking habits, his health had been failing for six or seven months before the murder. He is described as an excitable, nervous man, subject to fits; he also had heart disease. He was very much liked by all the bank's employees, one of whom thus described him: "He would brood over everything very much; he was very impulsive; he suffered from indigestion; he smoked a great deal; he was careless of his person, and would go all day without food, drinking beer freely of a morning."

  On Mrs. Kinder's first visit to the dentist she was accompanied by her mother and sister. Before her second visit the acquaintance had apparently so ripened that, though the mother and sister were again present, she and Bertrand exchanged notes surreptitiously as they shook hands.

  After the acquaintance and the intrigue had lasted about four months, a New Zealand squatter -- Francis Arthur Jackson, an old lover of Mrs. Kinder's -- came over to New South Wales, and went to live with the Kinder family. He appears to have been the evil genius of Kinder in New Zealand, where he led the husband to drink, and availed himself of the consequent drunken stupors to conduct an intrigue with the wife. This he admitted in court, when on trial on a charge of attempting to blackmail Bertrand.

  Mrs. Kinder could not continue her polyandrous relations without jealousy arising between her lovers; and a battle of wits appears to have occurred between Bertrand and Jackson. Bertrand said that he "would put Kinder against Jackson, and so get Jackson out of the road, by making Kinder jealous." Bertrand succeeded, and Jackson left the Kinders' house; but the rivals became friends again after a remarkable scene. Bertrand, Jackson and Mrs. Kinder met at her home, and threshed the matter out; Mrs. Kinder declared her preference for the dentist; Jackson withdrew his claim, made friends with Bertrand, and went to stay with him as his guest at the house in Wynyard Square. This scene would have been almost farcical had it not been for the tragic elements behind it. Bertrand challenged Mrs. Kinder to choose between him and Jackson, and she chose him. After this, he showed the most friendly feeling for Jackson, and they mutually explained their peculiar relationship to Mrs. Kinder. Beftrand was determined to have the woman to himself, and it appears clear that he had at this time made up his mind to murder his own wife, as well as Mrs. Kinder's husband, in order to marry her.

  He spoke of this to Jackson, while the latter was his guest. He said: "It's a bad thing my wife is so virtuous. It gives me no chance of getting rid of her."

  Jackson told him it was impossible that he could marry Mrs. Kinder, as her husband was alive. Bertrand replied: "All things are possible, and time will show it. Kinder is rapidly killing himself with drink. If that won't do it, other things will."

  At some period during their acquaintance Bertrand drugged Jackson and searched his papers, securing a bundle of compromising letters written by Mrs. Kinder to him in New Zealand. He failed to get them on one occasion, but succecded next time: his intention was that Kinder should be found dead with this bundle of letters in his hand.

  In September, Bertrand gave Jackson money to go to New Zealand via Melbourne, saying before his departure: "You would not like to be implicated in a charge for the murder of Kinder." Jackson, however, instead of going to New Zealand, betook himself surreptitiously to Maitland, about a hundred and twenty miles north of Sydney.

 

III

SHORTLY before the murder Kinder had been on sick-leave, but he was better on the eventful day, and went to Sydney, returning home at midday. Mrs. Bertrand, with her baby and nurse, went to Kinder's that morning, and in the afternoon the nurse (a girl of fifteen) was sent back to Sydney with the child -- ratber unexpectedly, since (she afterwards said) she did not usually return by herself, or so early.

  Later in the day Kinder was seen, in excellent spirits, playing with his children in front of the cottage. In the evening, at about 5.20, Bertrand and Kinder went to Dind's hotel near-by, and called for a glass of ale each, but only stayed ten minutes. Dind was a well-known citizen, in later years lessee of the Prince of Wales Theatre (now the Theatre Royal) in Castlereagh-street.

  The clearest account of the murder was that given in the evidence of Mrs. Kerr, Bertrand's sister. On information given her by Bertrand himself, and by his wife, she laid bare the particulars of (1) the intrigue of her brother with Mrs. Kinder, (2) the method of the murder, and (3) Bertrand's attempt to dispose of his own wife.

  At the trial Harriet Kerr swore: "I am a married woman, and sister to Bertrand, the prisoner. I arrived from Melbourne about six weeks ago, and went to live at his house in Wynyard Square. Shortly after I arrived he spoke of Mrs. Kinder, and said he wished to make her his wife -- that he wished a divorce from his present wife. He said he was very much in love with this person, Mrs. Kinder. I said I was very much surprised, as in his letters to me he said he was living happily with his wife. I argued with him, and said that after being married for three years he should think of better things. I only had one conversation with him on the subject of the divorce.

  "About a week afterwards, or five or six days, early in the morning, just before breakfast and before leaving my bedroom; Bertrand came into my room whilst I was washing the baby. He said, 'Stay a minute, I have something to say to you.' He told me to sit down on the side of the bed, and asked me if I had read about the death of Kinder. I said I had. He paused a little and then said, 'Kinder did not shoot himself!' He said -- 'I shot him.' I replied, You must be mad to say such a thing. He said, 'No, I am not mad -- I tell you I did shoot him!' I said, But how cruel of you to do so, and I put up my hands to my face. He pulled them down again. I was crying, and he said, 'Don't cry, I don't regret what I have done.' He said Kinder was in his way. He said he would do the same thing to any man who stood in his way. He warned me not to tell his wife what he had told me. He said he was jealous of Kinder, and that he loved Mrs. Kinder very dearly. When he shot him, he said he put the pistol in his hand, and a pipe in his mouth, and that afterwards he threw the pistol that he shot him with into the harbour. He did not say to me that he put a card into Kinder's hand before he shot him. I was told so, but not by Mr. Bertrand. When I remonstrated with him, he said, 'You need not be so hard upon me -- Kinder was going to shoot me, and had bought a gun to do so.' He did not say from whom he had heard that. He said that it was well-planned, and if it ever came before the public they would not believe it. He said, 'We planned it'; he said that more than himself planned it; we did not mention Mrs. Kinder's name in that conversation.

  "About three weeks after, I had another conversation with him in the dining-room; his wife was present, but she was asleep on the sofa. She used to sleep a great deal. I thought it was not natural sometimes; it was more like stupor. He then entered into conversation about the divorce from his wife; he used to beat his wife most brutally; this I observed whilst staying in the house. Speaking of the divorce, I told him how wrong his conduct was; his treatment of his wife was everything that was bad, wicked, and cruel. He attempted her life two or three times whilst I was in the house.

  "He said he must marry Mrs. Kinder. He said, 'I don't want to kill Jane,' meaning his wife, 'but if I cannot get a divorce I shall get up an adultery case with some respectable married woman, and then Jane can sue me for a divorce.' I asked him why he did not give up his thought of marrying that woman. He said he could not give her up. I said she must be a bad woman, to be cognizant of the death of her husband; she could not make you a good wife. He answered 'Yes, I know she is a bad woman.' He said that was why he must marry her -- because she was a wicked woman. He said he would make a second Lucretia of her. He then paused, and, leaning over me whispered, 'Kinder did not die by the shot, we poisoned him.' He said 'She (pointing to his wife on the sofa) gave him the poison.' He said the poison would never be discovered, and that he had enough poison in the house to kill half the people in Sydney. He said it was very likely that before I went to Brisbane I should see his wife's funeral. Several times he has spoken about Kinder, about seeing his ghost, and when he saw the colour of liquors on the table, referred to it as blood. At one time he said he loved Mrs. Kinder dearly, and at other times said she knew every wicked deed that could be committed, and that she was a devil's imp. He also said she was a clever woman.

  "One night he attempted to murder his wife, about a month ago. I was in the house at the time. He had been out, and came home at about one o'clock in the morning. He would never allow Mrs. Bertrand a will of her own in the house. She was very frightened of him. Speaking of some subject -- I don't remember what -- Bertrand and his wife were talking, and she dared to argue with him, when he got up in a very excited state and said her time had come -- that she must die. He took up a stick with a sling at the end, called a life-preserver, and said he wanted to measure the exact spot where her brain was, so that he could kill her with one blow. She said, 'Don't kill me; you promised me on your word of honour that you would not kill me.' He then raised the stick to strike, and I interfered, pleaded that for his mother's, for the children's sake, for all their sakes, he would forbear. He told me not to look at him or speak to him, and said, 'Go out of the room or I will brain you.' I went out of the room with fear and trembling, my tongue cleaving to the roof of my mouth. I tried to call out, but could not. I thought he would murder her. After I left the room he shut the door. I managed to crawl to the top of the kitchen stairs. I was so faint I could not walk then. I called for Bridget, the servant, and when she came up said, 'Bridget, there is something dreadful happening in the Parlour.' While I was speaking to her the handle of the door was turned, and I got up to the first landing of the stairs. Whilst sitting there I heard them saying something. My brother said, 'Now, Jane, I want you to go into the surgery,' and she asked what for? He said 'I want you to write on this piece of paper that you are tired of your life, and that you poisoned yourself by your own hand.' She said, 'No, I shall not write it.' He said, 'I will make you.' She said, 'You may pour the poison down my throat, but I will not write anything.' Before the conversation began, my brother had poured me out a little weak brandy and water, and whilst I was on the stairs I heard him say to Jane, 'Drink that,' meaning the brandy and water that he had poured out for me. He said, 'Drink it up!' She drank it. Mrs. Bertrand then came out, and we retired to our room for the night. Mrs. Bertrand and I slept together. She slept with me the whole time I was there, except one night. There was then a stranger, a lady visitor, in the house. Mrs. Bertrand, when she got into the room, sat down on a chair quite exhausted, and to my astonishment fell fast asleep. I thought it was strange she should fall asleep so soon after so exciting a scene. It was about ten minutes after drinking the brandy and water.

  "On two other occasions he attempted her life. After the first conversation with my brother relative to the death of Kinder, Mrs. Bertrand asked me why I was looking so pale -- what was the matter with me. I said I had heard something told by Henry that I could scarcely believe to be true. She said, 'What did he say to you?' I said he told me that he shot Mr. Kinder. I asked her, Is that true? She said, 'Yes.' This was in the dining-room. On the afternoon of the same day that my brother told me he had shot Kinder, she said, 'You know Henry and Mrs. Kinder and I are constantly visiting at the North Shore.' Henry had often threatened to kill Mr. Kinder. In reference to shooting him, she one day, in the parlour, warned Mrs. Kinder about this, that Bertrand was going, or had threatened, to kill him. Mrs. Kinder said, 'Tell him yourself;' Mrs. Bertrand said, 'No -- if it was my husband that was to be shot I should tell him myself, and think I had a right to do it.' The reply was something to that effect. She said that Henry was in love with Mrs. Kinder, and that she (Mrs. Bertrand) and her husband were to be divorced in consequence of this. She said they were living a comfortable life together, and were quite reconciled to the fact of a divorce; she being tired of the ill-treatment she had been receiving.

  "She then told me that, on one particular morning, Bertrand told her she was to go over to the North Shore, and take the baby and Sophy (the nurse-girl). She did not wish to go that morning, because it was raining, and the baby would get wet. He said she must go, and they did go. She noticed that when Bertrand came to the house (Kinder's), he seemed more serious than he had been for some time, and seemed kinder to Mr. Kinder. Mr. Bertrand was walking up and down the room very fast; and she noticed that he kept his gloves on, and one hand in his pocket. She said, I think, shortly after, that Bertrand and Kinder were talking about the business affairs of Kinder, speaking of New Zealand, and reading letters from New Zealand. Mrs. Kinder and herself were standing at the window looking out when they heard the report of a pistol, and on turning round she saw Mr. Kinder sitting in a chair and a pistol drop from his hand, and saw Bertrand place a pipe in Kinder's mouth, taking the pipe from the table. Mrs. Kinder ran out of the room; Bertrand followed her with a loaded pistol, put it to her head, and said if she did not go into the room he would blow her brains out. Mrs. Kinder then came back into the room. Bertrand then took hold of Mrs. Bertrand's arm, and made her face Mr. Kinder. She told me the blood was then flowing from the wound, and that Bertrand's fingers nearly met in her flesh, and he pinched her arm so hard that the marks were left for three weeks afterwards. He said, 'Now look at him -- look at him well,' making her look, 'I wish you always to see him before you.'

  "After Kinder was shot they made her (Mrs. Bertrand) nurse and attend upon him. She said she was doing all she could for the sick man to remedy the evil her husband had done. Mrs. Kinder and Bertrand during nearly the whole time were acting in an improper manner, such as walking up and down the verandah with their arms around each other's waists. Some time after the shot was fired she was looking round the room, saw something lying against the wainscot, and found it to be a flattened bullet. She said, 'Mr. Bertrand ran to me and took it from me, and put it in his waistcoat pocket, saying, "This is just what I wanted."' She said she had been attending upon Mr. Kinder two or three days, when he was improving, but Mr. Bertrand had decided that he could not let Kinder live -- that he must be poisoned. She said Kinder seemed better, not so delirious and more sensible. Mrs. Kinder went up to him and said, 'Why were you so cruel as to shoot yourself? He said, 'I did not shoot myself.' She said subsequently that Mr. Bertrand afterwards forced her to mix the poison, and that Mrs. Kinder gave it to him. That was all that she said to me that I recollect."

 

IV

AFTER the shooting, about eleven o'clock at night, Dr. Eichler called to see Kinder. It is a sinister fact that the message summoning Dr. Eichler (who lived in Sydney itself) to visit Kinder was delivered at his surgery in the afternoon of the day of the murder -- either by Mrs. Kinder's brother or by the nurse-girl, it is not clear which.

  Dr. Eichler found Kinder lying on a sofa in the parlour in a half-conscious state. He had lost a great deal of blood. There was a "large torn wound from the maxillary angle reaching up to the right side of the head in the direction of the temple, about four inches in length. The ear was forced away from its natural position. The wound had the appearance of having been dressed with perchloride of iron. The pulse was feeble, though regular, and the hands cold." On examining the wound the doctor found that the "parotid gland was gone; some of the branches of the maxillary and temporal artery were uninjured, with the exception of the processus xygomaticus . . . the ear was so far displaced that I could see the cavity."

  Bertrand was there when the doctor came, and, after the examination, they went back to the city together. Bertrand told the doctor that someone had handed to Kinder letters from which he appeared to be in money difficulties, and the sight of them depressed him very much. He also told the doctor of Jackson, of whom he said Kinder was jealous; and added that he himself had advanced Jackson money to get him out of the colony. He said, further, that he had done all he could to stop the hemorrhage, and asked the doctor to see Kinder again on the following Thursday -- which he did, and found the patient better.

  On Eichler's first visit he had warned Kinder that the wound was a dangerous one; that if he wished he had better settle his worldly affairs, "as he might soon have to appear before his Creator." At this cheerful communication Kinder "fell back in a stupor," as might have been expected. On the second visit, Mr. Kinder, speaking in German (Dr. Eichler was a Ger man), said he had been educated in Germany, at Neuwied on the Rhine. The doctor asked him how his wound happened, and he answered, "I don't recollect."

  Senior-Constable Emmerton of North Shore called at Kinder's house on October 4, two days after the shooting. Bertrand was on the verandah, and told the constable, in answer to a question, that Kinder had shot himself. Emmerton then went into the bedroom, and found Kinder "smoking cosily in bed." He spoke to Kinder, in Bertrand's presence. Kinder did not recognize him at first, but later said: "Are you the sergeant?" (Emmerton was known locally as "the sergeant"), adding, "What lies are these people here saying about my shooting myself? I did not do it." He then pulled the bandage off his face, but Bertrand helped the policeman to put it on again. Outside the sick-room Bertrand, being asked by Emmerton why Kinder shot himself, said Kinder all along accused his wife of doing it; but he personally knew of no dispute between Mr. and Mrs. Kinder, and that he, his wife, and Mrs. Kinder were all in the room when Kinder shot himself. The constable asked where the pistol was; Bertrand said Mrs. Kinder had it, but could not be disturbed, as she was ill in bed. Bertrand asked him not to report the occurrence as he did not want the people at the bank to know it, as it might do Kinder an injury.

  Two important witnesses at the trial were David James Nicol, a bailiff, and Ann Reynolds, the servant at Kinder's.

  Nicol, who was in occupation of Kinder's house for a time, on an execution for rent, said that he went into possession the day after Kinder was shot. The servant, Ann Reynolds, told him that Kinder was struck by Bertrand on the side of the head with a tomahawk after he was shot. He saw several bottles with "Poison" on the label.

  "When Kinder died," said Nicol, "Bertrand carried Mrs. Kinder into the room where I was. She sobbed; but in less than five minutes they were laughing and talking together." Bertrand always gave Kinder his medicine except on the last day, when Mrs. Kinder went into the bed-room with a wine-glass. Kinder died about an hour and a half after this.

  Ann Reynolds, the servant, gave evidence that Kinder, after he was shot, said to her: "It was a sore blow I gave myself with a stick."

  Mrs. Kinder said to Kinder, in her presence -- "What did you shoot yourself for?"

  He replied: "I have done nothing."

  Shortly before he was shot, Kinder bought a shillingsworth of oysters for his wife, and told Reynolds to prepare them. "On one occasion I said to Bertrand," said Reynolds, "that I was glad to see that Mr. Kinder was getting better." Bertrand replied: "He could not get better; the doctor said the brain was gone, and it was better that he should not recover, as if he did he would not be able to obtain a decent situation afterwards."

 

V

IN the published evidence one point is obscure. Did Bertrand send the message to Dr. Eichler before the shooting? The evidence given by Mrs. Kinder and Bertrand at the inquest showed that the shooting occurred between five and six o'clock -- probably nearer six. Dr. Eichler stated that he had received the message in the afternoon. "I heard from Bertrand, as I found from my servant, that some one had called from him in the afternoon, Mrs. Kinder's brother, I believe, or a nurse-girl."

  So it would seem that the time had been definitely fixed by Bertrand; that he had prepared all his plans in advance, and had resolved to temporize no longer. He evidently deemed that the opportune time had arrived to "Sweep away, is with a scimitar, my enemies, or those who step between thy love and me."

  Kinder died on Friday, October 6. An inquest was held on the body, the witnesses being Mrs. Kinder and Bertrand (who both swore that Kinder had shot himself); Mr. Cooper and Dr. Eichler. Mrs. Kinder's version was that on the fatal afternoon Kinder and she had had a disagreement; that he was violent, and threatened to leave her; that she was doing some needle-work, and heard a report of firearms, and, on looking round, "saw deceased had shot himself."

  Bertrand gave evidence of a disturbed state of mind in Kinder, showing a suicidal motive -- he had heard that Kinder threatened to shoot himself the night before. He said he and Kinder had passed the day at South Head, and that Kinder was drinking rather freely. Returning home, he kept arguing with his wife, became violent, and pushed her out of the room saying "he would tame her or kill her in six months;" then he said he would like to have a duel with Bertrand, as he was a good shot. He then became calm, and spoke of money difficulties. Then they went to Dind's Hotel, and returned at 5.35. Some bills were presented to Kinder, upon which he "commenced smoking very rapidly." Bertrand then described how his attention was taken from Kinder for a few minutes, and when he looked again he saw him in the act of shooting himself:

  "I saw the pistol in his right hand, the muzzle of it being against the right side of his head near the ear. I heard a loud report. The two ladies fell, and I thought they were shot. The pistol fell from his hand, but the pipe remained in his mouth."

  Mr. Cooper gave a favourable description of Kinder's character at the bank.

  Dr. Eichler told how, at eleven o'clock at night, he called at Kinder's house; described the injuries, and the measures he took; and gave it as his opinion, from all the circumstances of the case, that deceased inflicted the injuries on himself.

  Thereupon the coroner's jury returned a verdict that "Deceased died from the effects of a wound inflicted by himself by discharging a pistol loaded with powder, whilst labouring under a fit of temporary insanity."

  The reference to the pistol being "loaded with powder" is explained by the non-discovery of the bullet, which had been picked up by Mrs. Bertrand after the murder, and taken from her by her husband.

 

VI

IMMEDIATELY on hearing of Kinder's death, Jackson (who was still at Maitland) wrote to Bertrand:

  "I am shocked, horrified, stunned at this denouement of your plans; I little thought when you told me not to be surprised at anything after my departure that it would end in this . . . . . I have read the evidence, and noticed the discrepancies in it . . . . . Had the jury known one-half what I could tell them, this would ring through the whole civilized world . . . . . I would not stand in your shoes at this moment for all the wealth, rank, riches and beauty it is in the power of the world to bestow. As for the accomplice and accessory, I pity as much as blame her . . . . . Twice in your evidence you were guilty of wilful and corrupt perjury. A few words of mine to a magistrate or a hint to the police, would be sufficient to bring about a search into the affair, and cause you more trouble than you can conceive . . . . . I seem to be a sort of accessory by the fact of concealing what I know, and still more what every hour, and will burst forth unless you give me the means to get to some other land, where I may forget the horrors of this, as I could not remain in a country where such a fearful tragedy was enacted . . . . . On the receipt of this send me £20, and I will get away by the Tararua, never to return . . . . . I consider you two are now one in everything."

  Jackson's horror of the crime, of which he was as certain that Mrs. Kinder and Bertrand were the authors as if he had seen them do it would have been much more vivid had he known the elaborate arrangements which at one time Bertrand had made to lay suspicion upon him. He might have saved himself some trouble if he had straightway told the police all he knew; but he underestimated the audacity of Bertrand, who promptly gave the letter to the police. Jackson was arrested, prosecuted for attempted blackmail by threats, convicted, and sentenced to twelve months' imprisonment.

  Soon after the inquest Bertrand began to make indiscreet statements. To Alexander Bellhouse he volunteered a statement about his purchase of the pistols while in woman's garb, saying also that he had shaved off his moustache; that he was sorry for Kinder, but wanted him out of the way; that he was going to get a divorce from his wife in less than twelve months; that be was a powerful mesmerist, and had great power over people in that way; that he had great influence over his wife, and could do what he liked with her; that he had put the pistols in Kinder's way; and that Kinder had shot himself.

  To Mrs. Robertson, a friend of both families, he said that he shot Kinder, and that Mrs. Kinder wished him to shoot her husband while Jackson was in the house, so that the latter might be blamed for it. Mrs. Robertson described a scene at her house, where Bertrand forced his wife to take a card from the table:

  He desired her (his wife) to look at it well. He said, 'Jane, do you hear?' She said: 'Henry, don't, don't!' He told her to take the card in her hand, and asked her if she recollected it. She turned very pale and commenced crying. She took up the card, after being told to do so several times. He then told me to take the card and look at it. I asked him why I was to look at it. He said because it was the card that Kinder had in his hand when he was shot. We then went into the drawing-room, when he commenced raving, and falling on the floor, called out 'Ellen, Ellen, come and dress!' he also said, 'Jane, are you asleep?' and called for someone to fetch Ellen from Mrs. Macintosh's. I do not think he was in a fit. He called out, 'Bring the milk and mix the poison -- I say, Ellen, you give it him -- I say you are to give it to him.' He said: 'Don't wring your hands. He feels nothing now.'"

  Soon after the murder Bertrand was taken before a magistrate for threatening to kill Mrs. Robertson and was bound over to keep the peace. She stated that he had once tried to mesmerize her -- she felt a kind of galvanic shock and, when she felt a dizziness about her eyes, she ran out of the room.

  At the Darlinghurst Court House, when Jackson was being tried for blackmail, Mrs. Robertson saw Bertrand shaking Mrs. Kinder by the wrist in the court-yard, and heard him say that she annoyed him by laughing at Jackson, and that she wished to go to Jackson in the dock.

 

VII

THE prosecution of Jackson stirred the public mind, and led the police to make a stricter inquiry into the circumstances of Kinder's death. It is probable, too, that Jackson did not take his punishment tamely, and that he told all he knew to the authorities while in gaol. A Mr. Defries, a friend of the family, apparently intervened, and in due course persuaded Mrs. Kerr to go to the Inspector-General of Police, Captain McLerie. Bertrand, Mrs. Bertrand, and Mrs. Kinder were arrested. Mrs. Kinder was arrested at Bathurst, whither she had gone to live with her father and mother. Only one letter of Bertrand's was found in her possession. In Bertrand's possession the police discovered a bundle of letters written by her from Bathurst, as well as the amazing diary to which reference has already been made. Her letters began at first "My dear friend;" but the later ones began "My dearest darling love," and "My own dearest love," "My own dearest," "My own darling." This correspondence continued from the 23rd of October to the 21st of November. Mrs. Kinder was arrested on the 25th of that month. Her letters, apart from their amorous nature, are filled with requests to Bertrand to help her to secure employment in Sydney, since her parents' business in Bathurst was not doing well. Apparently Bertrand assisted the distressed family, and in the last letter Mrs. Kinder refers to her anxiety lest he should be "running great risks about these promissory notes."

  The diary kept by Bertrand for the subsequent perusal of his mistress -- "This diary is for thee, my Helen!" -- contained several incriminating statements. Those quoted by the Crown counsel at the trial for murder were:

  "Think kindly of me -- of my great failings . . . see what I have done for thee -- for my -- for our -- love."

  "I am now, by my own agonies, paying a debt to retributive justice; how or what I have made others suffer, God only knows; but if I have I richly deserve all I feel; and you, my love, have you not done the same?"

  "Dream of the future; for we both look forward to repent of our sins and make peace with God; I am sure He will help us to be good if we try with all our heart and strength."

  "I look back at the past, and I am almost astonished at what I have dared and successfully executed."

  "My heart gets sick and faint when I look into the future. God! is this Thy retribution for my sins? Did I flatter myself that God would let a wretch like me go unpunished? But I tell thee, Fate, I defy thee!"

  "The more they oppose us, the more will be my power of resistance. Poor fools, to try and thwart my will-I who value human life so little, and value weapons to be used when required, and then thrown away and destroyed, some, of course, being kept for future use if necessary."

  "I should be ashamed of our love, of what I have done for it; if I knew not different from that -- that is our only excuse on earth or in Heaven for what we have accomplished."

  He alludes in this diary to his various employments, among them modelling in wax; of this artistic temperament we shall hear later in his prison career.

  "I designed a figure of a native of Fiji, to form, with the pearl-shell given me by Mrs. Robertson, a pair of salt-cellars . . . to send to the forthcoming Melbourne exhibition . . . . . There will be for one (cellar) a naked figure of a Fijian, kneeling in a graceful attitude, holding the pearl-shell, which is shaped like a flat basket, above his head, from which will droop bunches of seaweed. The figure will rest on an appropriate stand, emblematical of the seashore, and the spoon will consist of a paddle formed of some other kind of shell, small, of course. I purpose making the other exactly the same, only that the figure will be that of a female of the same island. They will both be cast in solid silver, frosted . . . ."

  In the diary Bertrand records the gradual decline of his practice. Rumours to his detriment were already afloat. At this time, too, he was preparing, without any secrecy, some contrivance by which he could get rid of his wife and marry Mrs. Kinder. In the diary for October 31 he writes:

  "I know thy heart, and if thou hadst me for thy husband how different my Ellen would have been. But it is not too late now. If you pray God with a true repentant heart, to help you, love, I am sure He will. Oh, I dare not lift up my voice yet. I feel that I dare not, as yet, ask His forgiveness. So Ellen, my own dear wife, pray also for thy husband. Supplicate our Saviour that He may soften my heart, and that He will suffer me to approach the throne of grace . . . . . Jane [his wife] as usual goes to sleep . . . I worked hard all day, but took no money. At 6-30 we three [Mrs. Kerr, Mrs. Bertrand and Bertrand] went out for a walk in the Domain. I sat a moment on the seat we sat on that night. Do you, my Ellen, ever think of those delightful times?"

  Then he records how he had met Mrs. Kinder's "papa," and told him that he was planning to marry the widow; and "papa" said that, if Ellen loved Bertrand sincerely, and that it was for both their happiness, he would not object. "So that is settled!" continues the entry. Most of the people surrounding Bertrand almost appear to have regarded Mrs. Bertrand as non-existent; and all save Mrs. Kerr seem to have regarded it as the most natural thing that Bertrand should dispose of his wife either by divorce or murder! Indeed, she seems to have acquiesced in the idea herself.

  Mr. Defries, who was now taking a hand in the affair, is referred to in the diary.

  "Mr. Defries, when I was out with him, spoke to me about our affair. He said he knew more about us than we imagined; that he had watched us all along, and that he thought it his duty to speak to me on the subject. What I imagine is this -- that either Jane or Mrs. Robertson have hinted something to him of what they know. I thought it best to hear what he had to say, so that I could be on my guard. He knows the truth of my love for Ellen, and also that she loves me. He knows that I intend getting a divorce. He begged of me almost on his knees to try and love my wife."

  The entries written on Nov. 11, show also that he feared having to go bankrupt. To bolster up his failing financial position he had a project: "I spoke to Layard about taking a hotel for Ellen -- in fact for myself -- so that if my business is injured by the Kinder affair, I shall have something to fall back upon . . . . . In fact, my plan is this -- to take the place for myself, and put my darling in it for me, in her name." Mrs. Kinder's father was to manage the place. In the end, he took the University Hotel at the Glebe, Mr. Layard joining him in the business. The last entry in the diary is on November 18, 1865.

  Bertrand, from evidences in the diary, and from conduct proved at the trial, appears to have been remorseful. Like Macbeth, he talked about the ghost of his victim, and on one occasion when he saw jam on the table he pretended it was blood. At Mr. Defries' place one evening he frightened the company by "pretending to Le the devil, making horrible noises, and grotesque grimaces, and threatening to raise the ghost of Kinder."

  Among those to whom he had confided his guilt was Mrs. Robertson, whose house he often visited, remaining late; and he records these frequent visits in the diary. He stated to her that he possessed mesmeric power, and (as we have seen) he tried to mesmerize her. But, despite this friendly intercourse, Bertrand threatened to kill Mrs. Robertson with a steel, at her own house, and she prosecuted him for it. At the police court be was bound over to keep the peace towards her, or go to gaol for fourteen days. He was in gaol under this sentence when arrested.

  Among Bertrand's effects found after his arrest were a pistol and powder, a tomahawk, a box of caps, a bullet, and a bottle with "poison" on the label. A curious circumstance was that Mrs. Kinder kept a pistol, with which she alleged her husband shot himself, amongst the children's clothes.

 

VIII

MRS. Kinder was not put upon her trial, and the reason is interesting. Mr. David Buchanan, a well-known barrister and politician of the day, asked the Attorney-General, Mr. Martin (afterwards Sir James Martin, Premier of New South Wales and, later, Chief justice) why Mrs. Kinder was not arraigned and tried for murder. Mr. Martin replied:

  "There is no evidence to show that Mrs. Kinder manifestly knew of Kinder's murder; and, if she did know of it, and concealed it by merely abstaining from declaring it, she would not, by reason of such abstaining, be an accessory. Still less would such abstaining be evidence that she was privy to the whole design previous to its execution. If a person knows of a felony, and does not diseover it, such non-discovery does not make him an accessory after the fact. He must be proved to have done some act to assist the felon personally. There was no evidence that Kinder died by poison, and therefore, no evidence to convict any person of the crime of murdering or assisting in murdering by poison. There was evidence that Kinder was killed by a pistol-shot, but there was no evidence that Mrs. Kinder assisted in the shooting, or counselled, aided, or abetted it. If she knew of the shooting after it occurred, there was no evidence that, after such knowledge, she assisted Bertrand. There was therefore no evidence to warrant her trial, either as a principal or an accessory, and she was entitled to her discharge."

  So she disappears from the scene. She fled as soon as opportunity offered to New Zealand, where it is said she became a barmaid. The much-injured Mrs. Bertrand was soon released, and the weight of the crime fell upon Bertrand, who was tried before Sir Alfred Stephen, Chief Justice of New South Wales. There were two trials, the first on the 14th, 15th and 16th of February, 1866, at Darlinghurst Court House.

  Mr. Butler, a leader of the New South Wales Bar, and afterwards Attorney-General, prosecuted for the Crown. Bertrand was defended by Mr. Dalley, afterwards the Rt. Hon. William Bede Dalley, P.C. -- orator, statesman, wit, the first Australian appointed to the Privy Council. He had for his junior Mr. W.C. Windeyer -- afterwards Mr. Justice Windeyer, one of the ablest lawyers Australia has produced. Counsel for the defence were instructed by Mr. William Roberts.

  The only fresh evidence that need be mentioned here is perhaps of interest to the medical profession. When the body of Kinder was exhumed two months after burial, and was examined by Drs. Eichler, Alloway, and Alleyne. Dr. Alloway differed from Dr. Eichler as to the direction of the wound; Dr. Eichler was confirmed in his belief that the injury could be caused by gunpowder, wadding, or newspaper fired from a pistol close to the face, Dr. Alloway held that the maxillary bone could not have been so injured without the use of a bullet or some hard substance: Dr. Alleyne agreed, though not too decidedly, with Dr. Alloway. Dr. Eichler still retained the impression that the wound was self-inflicted, but admitted that there was a possibility of the shot having been fired by someone else, and that there might have been a bullet. Dr. Alloway maintained that Kinder's posture must have been a most extraordinary one if the wound was self-inflicted.

  All three medical men agreed (1) that the wound was one that might or might not cause death and (2) that the patient's condition on the 5th of October, as shown by the evidence, indicated a probable recovery.

  Mr. Watt, analytical chemist, gave evidence that, having examined the contents of Kinder's stomach after exhumation, he found no poison; but said that the result of his analysis was not inconsistent with death by poison. Vegetable poisons rapidly decompose in the stomach, and there had been an interval of two months between the burial and the analysis.

  A contemporary account says "that popular feeling is strongly excited against Bertrand and Mrs. Kinder, was evidenced by the assault committed on Mrs. Kinder when leaving Darlinghurst Gaol for the Court, and by the hootings, hisses, and execrations which greeted the appearance of Bertrand when about to be driven to prison . . . . . Much sympathy has been shown for Mrs. Bertrand, and we think that sympathy is not misplaced."

  The evidence for the prosecution is substantially given in the recital of the facts above. The case for the Crown having closed, Mr. Dalley called no evidence in defence, but addressed the jury. He pointed out that the prisoner was being tried on his own admissions. The fact of the prosecution of Jackson was cited "as evidence of anything but guilt." Mr. Dalley made it a strong point that "if Bertrand had determined to murder Kinder, he would have let him bleed to death; but he did all a non-professional man could do to preserve life. And there was no proof that he died by poison."

  The summing up of the Chief justice was a model of fairness. The jury retired, and after over twenty-hours' deliberation returned to Court and stated that they had not agreed and were not likely to agree. They were discharged; and six days later Bertrand was arraigned again, before a fresh jury.

 

IX

IN the second trial the same counsel as before appeared for the Crown and for the prisoner. The challenge of jurors exhausted the panel, and the sheriff nominated a panel from bystanders present in court.

  Then occurred a circumstance which led to the saving of the prisoner's neck from the hangman's rope. In the Law Reports (Privy Council cases, Vol. 1. 1865-67, p. 520) in the statement of the case on appeal, it is said that "no specific or definite consent was given by the prisoner or his counsel" to a proposal that to save time, the judge should read over the evidence to the witnesses who testified in the former trial; but the press report, and also the statement by Sir John Taylor Coleridge in giving judgment, show that the suggestion as the reading of the evidence was volunteered by Mr. Dalley, who said in open court that prisoner consented to this method of saving time.

  It was noted in the press that Sir Alfred Stephen rebuked Bertrand for unseemly conduct while his sister was giving evidence, in pacing up and down the dock and laughing at her. He said that, although he had no power to prevent it, it ill became one in so grave a position. Mrs. Kerr was so affected at her brother's conduct that Mr. Dalley declined to cross-examine her.

  The jury, within two hours, brought in a verdict of "Guilty."

  On being asked if he had anything to say why sentence of death should not be passed on him, he, "in a voice betraying no trepidation, and perhaps only a natural weakness," complained (as prisoners often do) that his counsel had not called evidence which would have assisted to prove his innocence. His counsel had not called Mrs. Kinder or Mrs. Bertrand, "although they could have proved my innocence." He said the terrible tale he told his sister was "a jest."

  "If I die, I am murdered," he continued "and in spite of the decision of the twelve men who have given this verdict, I defy the world to say that there has been a murder . . . . I wrote that diary not intending it for the eyes of anybody but herself (Mrs. Kinder), and to gratify that romantic feeling which seemed to be part of her very nature . . . . It is not the end of justice to take the life of an innocent man . . . . I was in the habit of leading a wild, loose life, and because of it, there is imputed to me a crime which was never thought of before Jackson alluded to it in his letter. We two have discussed a marriage with Mrs. Kinder -- two men of like character. He said it was not impossible for him to marry her; but that it was for me . . . . If I could have poisoned Kinder, why should I have shot him? As to the statements I made, I was in the habit of hearing jokes and joining in them freely, with a good deal of nonsense about the time of prosecuting Jackson as to shooting men and running away with their wives, and it was in jest that I told my sister what has been stated . . . . A certain amount of intelligence and ability is imputed to me; and yet it is assumed that I would entrust such a terrible secret to women, who are known not to be in the habit of keeping secrets . . . . I complain of the most unfair and unjust manner in which my case has been treated from beginning to end -- the ex parte statements at the police office having, in contravention of justice, been published, and the whole case put before the public to make a sensation. To this I attribute all the prejudice against me. Your Honour is not an interested party, and may have the means of ascertaining the truth of what I have said."

  Sir Alfred Stephen, in passing sentence, said: "You are evidently a person of great ability, acuteness, and considerable cunning, with sufficient cleverness to seize upon weak points and make them appear an excuse which to reflecting persons could be no palliation whatever . . . . I have had great experience in criminal trials extending over thirty-two years, and have tried more cases, perhaps, than any judge in the country; and I have never known a case clearer than your own . . . . Is there the slightest probability that, without any temptation, and with his pipe in his mouth-having only half an hour before been playing with his child, and just bought oysters for his wife and given them to the servant to prepare for supper -- this unfortunate man, no pistol having been seen in his possession about that time, should go into the drawing-room in your presence, in the presence of your wife and his own, and commit a bungling attempt at suicide like that described by you? He might have been embarrassed, and addicted to drinking. Had he not been a drunkard, his wife probably would not have been seduced by Jackson, and you would not have debauched her . . . . . I do not think Kinder was drunk on that day; but, whether drunk or sober, it is inconceivable that he could have intended to take his life in that bungling, stupid, incredible manner. Then I find you had every temptation, every motive, for destroying him. You were madly in love with this woman, with a passion eating into your vitals; and you would have committed any crime to have her as your own . . . . You cannot but be regarded as a fiend. You are not a human being in feeling. I can speak of you with compassion, because I do not think you are fully possessed of the mind that God has been pleased to give to almost all of us. On that account alone I feel some sympathy. It is distressing and sad that any father of a family -- a man that might be useful in his generation -- should die on the scaffold for a crime that makes human nature shudder."

  Sentence of death was then passed, Bertrand retaining his self-composure.

 

X

AT this point Mr. Salomons -- afterwards Sir Julian Salomons,* and a distinguished Queen's Counsel -- came into the case. It was said at the time, and is believed by contemporaries who are still with us, that Bertrand was of Jewish descent, and that those of his race in Sydney determined to prevent him from being hanged, whatever the cost.

  * Julian Salomons had been employed as clerk to a stockbroker, but displayed such remarkable ability in the Synagogue debating club that his co-religionists provided funds for his education. He studied, and was called to the Bar, in London.



  Many people believed that Bertrand was insane, some that he was innocent. His uncle represented to the authorities by petition that insanity ran in the family; that an uncle had died in London twenty years before, from brain disease; and that another uncle had died mad in March, 1866. Others thought he had been prejudiced in his trial by public clamour, pamphlets, photographs, etc. The execution was fixed for March 19, 1866. Petitions were got up praying for a reprieve.

  It was in this case that Julian Salomons won his spurs. He was briefed to ask the Supreme Court for a rule nisi for arrest of the judgment.

  was refused by a majority, Mr. justice Hargrave dissenting. The Full Court was then asked by him to re-hear the arguments, but refused.

  But, on March 12, the Full Court granted a rule nisi calling upon the Attorney-General to show cause why the verdict of Guilty should not be set aside, and a new trial granted or judgment arrested on four grounds: (1) illegal discharge of the jury, (2) the judge reading a portion of the evidence in the second trial, instead of taking it viva voce, (3) the right of the Crown Prosecutor to reply, (4) that arguments in favour of arrest of judgment had not been heard before the Full Court.

  After argument, Justices Hargrave and Cheeke gave judgment that at the second trial there had been a substantial miscarriage of justice in the mode which the Chief Justice had adopted in admitting evidence in that trial -- and that there ought to be a new trial. The Chief Justice was against this view, and was supported by Mr. Justice Faucett; but the latter withdrew his judgment, in order that the matter might be decided by the Privy Council. So the verdict was set aside and a new trial granted. This being opposed by the Crown, the matter went to the Privy Council.

  Meanwhile, with indomitable pluck, Mr. Salomons challenged the procedure of a judge withdrawing his judgment in order to allow a higher court to decide. He was beaten on this point, as it was shown to be a well-known practice in the English Courts.

  The names of the judges at the session of the Privy Council, as also of counsel on both sides are illustrious in the annals of the law. There were present Lord Wensleydale, Sir John Taylor Coleridge, Sir Edward Vaughan Williams, Sir William Earle, Sir Fitzroy Kelly (the Lord Chief Baron) and Sir Richard Tobin Kindersley. Counsel for Bertrand -- the respondent in the appeal -- were Mr. Hardinge Giffard, Q.C. (now Earl Halsbury, ex-Lord Chancellor), Mr. F.H. Lewis, and Mr. E. Clarke (afterwards Sir Edward Clarke). For the appellant (the New South Wales Attorney-General) were Sir Roundell Palmer, Q.C., and Mr. Hannen.

  After argument, Sir John Coleridge delivered the judgment of the Privy Council. First, as to whether their Lordships ought to entertain the appeal, their judgment was, that in all cases, criminal as well as civil, arising in places from which an appeal would lie, it is the inherent prerogative right, and on all proper occasions the duty, of the Queen-in-Council to exercise an appellate jurisdiction, with a view not only to ensure, as far as may be, the due administration of justice in the individual case, but also to preserve the due course of procedure generally. Though an application to be allowed to appeal in a criminal case came to the Council labouring under a great preliminary difficulty, yet the difficulty is not invincible.

  Secondly, they held that, according to the English law prevailing then in New South Wales, the Supreme Court had no power to grant a new trial in a case of felony.

  On the question of the Chief justice's mode of examining witnesses in the second trial, they could not pronounce that anything amounting in law to a mistrial could fairly be charged on the course pursued. But "their Lordships do not hesitate to express their anxious wish to discourage generally the mode of laying the evidence before the jury which was adopted on this trial."

  Justice Coleridge pointed out, with regard to the examination of witnesses, that those of his colleagues who have been used to hear the judge's notes of evidence read, probably know well by experience how difficult it is to sustain the attention, or collect the value of particular parts, when that evidence is long; "and one cannot but feel how much more this difficulty must press upon twelve men of the ordinary rank, intelligence, and experience of common jurymen. But this is far from all. The most careful note must often fail to convey the evidence fully in some of its most important elements -- those for which the open oral examination of the witness in presence of prisoner, judge, and jury is so justly prized. It cannot give the look and manner of the witness; his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration; it cannot give the manner of the prisoner, when that has been important, upon the statement of anything of particular moment . . . . it is, in short, the dead body of the evidence, without its spirit; which is supplied, when given openly and orally, by the eye and ear of those who receive it."

  His Honour concluded his judgment with a promise, that, in view of the circumstances of the trial they would "make a recommendation to the proper authorities." The recommendation led to the commutation of the death sentence, and a sentence to imprisonment for life with hard labour, three years in irons.

  The doubt which existed in the minds of many as to Bertrand's guilt was cleared up by a statement he made to his counsel, Mr. Windeyer, after conviction, and when the confidential relationship of counsel and client had ceased. He acknowledged his guilt without equivocation.

 

XI

BERTRAND served twenty-eight years in prison in various gaols in New South Wales, and during that time his conduct was exemplary. Indeed, he was only disciplined twice -- once with a sentence of twenty-four hours' cell for speaking to women prisoners in Maitland gaol; on the second occasion with a reprimand for some technical gaol offence. Of this period of imprisonment, four years were spent in the criminal lunatic asylum.

  While in gaol he learnt to play the organ, and was gaol organist for many years. He was also permitted to gratify his artistic instincts, and made a number of paintings in oil -- one of which, of a religious subject, was hung in the gaol chapel. Of the merit of these there is no way of judging. They were diversified in character, and ranged from landscape to figure subjects (some of a religious character), animal painting, and copies of well-known pictures. He was also permitted to have bone and ivory for carving; and a specimen of his carving is now in the Mitchell Library, Sydney. It is of a very delicate design, carved in bone, and has undoubted artistic merit.

  His mother was alive in 1881, still endeavouring to assuage the condition of her erring son. Of his wife nothing is known.

  Sir Matthew Henry Stephen, son of the judge who tried him, and himself a distinguished judge of the Supreme Court of New South Wales, took a great interest in Bertrand, visited him in Parramatta Gaol, and was active in securing his release.

  After twenty-eight years the order for his release was signed in 1894. He was liberated on 16th June and taken to the Hotel Metropole, where several of his former acquaintances saw him. He still had the huge mop of curly black hair parted in the centre, but streaked with grey, the side-whiskers and moustache. He was fifty-three when released.

  Before leaving prison he was given £32/4/-, his accumulated gaol allowance, and £15 as special allowance for the following services (1) labelling with gold all the bottles in the prison dispensary; (2) care of surgical instruments; (3) services as organist. It used to be stated in the press that he acted as gaol dispenser; but there is nothing in the records to confirm this, save the inference which might be drawn from the labelling of the bottles.

  After a few days in Sydney, Bertrand departed for London. Nothing is known of his subsequent history. It is stated by, a friend of his, still alive, that a well-to-do aunt in England had arranged to provide for him on his release. He probably went to this haven on arrival in England.

(End)

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