British Columbia’s Champion of the Courtroom
Losing his temper, he seized the prisoner by the throat and began shaking him violently...
Stuart Henderson, the man known as Canada’s Clarence Darrow. —BC Archives
In 50 years before the bench, from prime minister's drawing room to frontier jail cell, he never turned down a case. He was a legend in his own lifetime, celebrated from the Maritimes to the Klondike as the greatest criminal lawyer of his age: Stewart William Henderson.
His death, aged 81, made the front page of the New York Times.
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Eldest of seven children of an Aberdeenshire stone-cutter, he was born in 1863. The young Scot was descended of a noble heritage, for among his ancestors, mostly stonemasons and hardy whalers, was the great theologian of the Church of Scotland, Rev. Alexander Henderson. Perhaps it was an inheritance of the good reverend’s gift for oratory and will to fight for a cause that ultimately made Stewart Henderson ‘Canada's Clarance Darrow.’
Whatever, by the time of his arrival in Canada at the age of nine, Stewart had already demonstrated, according to one account, “a flair for argument and fighting”. The amazing Scot was to put this ‘flair’ to remarkable use for 70 years.
Prime Minister Sir John A. Macdonald tried to stall. —Wikipedia
Upon entering the University of Toronto, Anderson embarked upon the great adventure, supporting himself by jobs and scholarships. He passed the 1888 law examination at the head of his class, having won several gold medals in the process.
His first case with the federal justice department concerned an incident of the Riel Rebellion. Apparently, during hostilities, $8,000 worth of furs belonging to three Metis had been confiscated. With the return of order, the men had claimed their furs, only to find there was no record of their having been seized by the Crown.
Normally, the suit would have drawn little interest beyond the courtroom. But it was election time, and rumour had connected the missing furs to the leading member of the Dominion forces who’d since become an important Conservative in Ottawa. Hence Prime Minister Sir John A. Macdonald's desire to delay the case.
As counsel for the plaintiffs—and, coincidentally, a devout Liberal— Henderson demanded the names of the solicitors representing the men who’d been charged. When the issue avalanched to political crisis, the battle shifted to Parliament where a fascinated Henderson watched from the gallery.
Then rumours swept Capitol Hill that writs had been served on all concerned.
Liberal leader Wilfred Laurier “cussed that morning—a real scorcher,” Henderson recalled years later. —Wikipedia
Sir John and his Justice minister, Henderson recounted half a century later, "seized on that point”. They didn't want a committee. Both told the House they would have granted one if the writs had not gone out. Those writs, they said, took the question out of their hands and they couldn't interfere with court procedure.
“The next morning Laurier called me in and asked why I had issued the writs. Laurier used to cuss in those early days. He cussed that morning. It was a scorcher. I told him no writs had been issued. The government was forced into appointing a committee and it started the downfall of the Macdonald administration."
It seems strange that the up-and-coming lawyer forsook the glamour and intrigue of Capitol Hill but, in April of the following year, Henderson joined the flood of adventurers to the Klondike. Actually, he made it only as far as Ashcroft, then booming as a jumping-off point to the gold fields of Yukon. He liked Ashcroft, which like him enough to send him to Victoria as its MLA for Yale District in 1903, and again three years later over former Premier Charles Semlin.
Only the golden promises of the CNR sent Sir Richard McBride to the legislature in a third contest. Many years after, Henderson reminisced of his lawyer days in pioneer Ashcroft. Like his first murder case in B.C., which remained ever fresh in his memory as, for a few terrifying moments, it appeared he himself would be charged with murder!
Behind this word weird turn of events had been two Chinese accused of murder. Henderson had been busy trying to construct their defence, however flimsy, against the Crown’s formidable case and eyewitnesses, when he received “hints” one of his clients had secretly come to terms with the prosecutor and confessed.
The outraged counsel stormed into the man’s cell and demanded to know if he had indeed turned State’s evidence.
“I asked him time and again if he had to confessed. He would tell me nothing. In desperation I grabbed him by the throat and picked him up off his feet. I yelled at him and shook him till his feet barked at my shins as he thrashed around."
Suddenly, Henderson realized what was happening—“his face [had] turned blue. He was all in while I put him down. I was in a pickle. I thought he was going to die. Here I was, engaged to defend two men against the charge of killing someone else, and I thought I had done one in!”
“He finally came around and told me he had made the confession. I succeeded in having it excluded and my Chinese clients were found not guilty.”
It should be pointed out that B.C. was then little removed from her frontier days when justice, even time-honoured British justice, had, on occasion, to be expedient. It is also to be noted that Henderson's Chinese clients likely had little understood the seemingly mysterious ways of a courtroom.
There were other memorable cases over 50 years. One of Henderson's favourites had been that of Walker and Chinley, a Scotsman and a half-caste charged with murder. Henderson had argued their case all the way to Appeal Court, losing decision after decision. There, finally, he won a new trial and a change of venue from Clinton to Vernon.
At last it was time to swear the jury. Henderson surveyed the crowded courtroom apprehensively; he didn't “know a man among them. Walker and Chinley were in strange country.
“One of them was an Indian [sic]. I knew if I got Englishmen on my jury I'd have a hard time. So I challenged every man who wore those high English leggings as he came to be sworn—I wasn't having any leather leggings in that crowd if I could help it. After that everything broke my way. One Crown witness went out of his way to say how honest I was. All the luck in the world turned my way. The pair were found not guilty.”
But it wasn't luck that made the name Stuart Henderson an awesome force in B.C. courtrooms.
Ingenuity and a bulldog grip for the tiniest congruity, loophole or misspelling of a charge accounted for an almost perfect record of acquittals and murder cases. His reputation grew to the extent that judges, juries and prosecutors watched every expression, every action in awe.
In at least one case, his very name rescued a youth from a likely date with the gallows. This came soon after the successful Walker and Chinley case when that lengthy legal battle was still fresh in the minds of barristers and magistrates alike.
For Henderson, the case began in a Victoria Hotel lobby, where he received an urgent letter asking him to defend Jimmy Antoine, charged at Kamloops with slaying his wife. He read the inquest report. All evidence indicated a bloody struggle between the Antoines. Upon arrival, Henderson sadly informed the man “he needed a priest, not a lawyer. He pleaded with me to take the case and told me I was his only hope."
His faith wasn't misplaced as Henderson's desperate defence resulted in a hung jury; nine had voted for a verdict of murder, three for manslaughter.
With the announcement of a new trial came an invitation to compromise, the judge and prosecutor apparently fearing a repeat performance of the long and expensive Walker and Chinley affair. They offered to reduce the charge to manslaughter if Antoine pleaded guilty. “I said I'd have to know what the sentence would be. The judge was pretty indignant, said he wouldn't tell me that and I declined to change the plea."
At a second meeting in his chambers, the judge said "he’d give the boy 12 years if I pleaded guilty. I refused.
“Twelve years to an Indian used to roaming the country is just about the same as life. I walked out. The judge called me back and said six years. I changed my plea. No jury was needed and the trial was over quickly, with sentence reserved until the end of the Assizes.”
But sentencing brought one of the few moments of terror for the defence counsel. When, finally, Antoine entered the dock for sentencing, the judge “went for him with everything he had. He gave Antoine the damndest dressing-down I ever heard. I began to get nervous. I thought he'd forgotten the agreement. He was a fair man and honest, but he was apt to forget things."
As Henderson listened with growing panic from the edge of his seat, "face...as red it could be," the judge continued tongue-lashing Antoine. Then, just before passing sentence, he paused, waving his hand undecidedly.
“And so I sentence you," he wavered, "I sentence you to... 4 years!”
A kick in the shin, delivered by an angry prosecutor, sent Henderson bolting upright, mouth open to roar outrage at the judge’s indiscretion. Then, as the realization of what had happened sank in, he sat down again, dumbfounded.
He and Crown counsel were then summoned to the judge's chambers.
“He was mad. ‘Henderson,’ he said, “I couldn't remember what I promised you, and I know if I gave the [prisoner] one day more than we'd agreed, you would jump up in court and let me have it!’”
Henderson moved to Victoria in 1913, travelling throughout the province to do battle for scores of accused, many of whom were Aboriginal. In 50 murder trials, he lost only five clients to the gallows—one of whom he always swore had been innocent. His willingness to defend Aboriginals earned him the affectionate title, ‘Great White Friend.” He never learned a word of their language but was welcomed on any reserve in the province as a chief.
In September 1943, Stewart Henderson celebrated his 80th birthday—still an active barrister, long after most of his original colleagues had retired or passed away. In carelessly flowing gown, the old man with sparse white hair and horn-rimmed glasses continued with the same old fire, the same attention to the minutest detail of a law book. His day still began at 7:30 in the morning and often ended between 10:30 p.m. and midnight.
“Age doesn't bother me, I'm too busy," he told reporters. Asked his recipe for healthy old age, the smiling octogenarian declined to answer, saying only "I have no pains or aches." He did confess to two vices: crossword puzzles and detective magazines.
Asked if he’d ever concerned himself with clients’ guilt or innocence, he replied: "My job has been to defend men. It's up to the judge and jury to find them innocent or guilty.”
Queried as to his views on capital punishment, he surprisingly answered quite emphatically that he believed it to be the only real deterrent to murder. A murderer sentenced to a jail term suffered only six weeks, he said—the first three weeks and the last.
It was pointed out that two of his college friends had earned distinction on the bench, one becoming head of the Canada Supreme Court, the other Chief Justice in B.C., and he was asked why he’d refused an appointment as Chief Justice of the B.C. Court of Appeal. "I wouldn't have made a good judge,” came the serious reply.
"I always take a side and I fight for it. If I had taken the opportunity when I was younger, I might have been reconciled to the bench, but I don't know. I think I've been happier the way I am."
Henderson maintained his brilliant record until the very end, obtaining two acquittals for clients charged with murder within six months of his death. On February 17, 1945, he died in Victoria’s Royal Jubilee Hospital after a short illness, aged 81.
Many mourned the fighting lawyer—Canada's Clarence Darrow.
They delightedly recalled the time he had a bootlegging client's conviction quashed when he found the stipendiary magistrate had been incorrectly appointed. It was but a question of wording but the unique defence resulted in 22 other magistrates throughout the province having to be reappointed—correctly.
The secret of his success, said a 1935 account, was an unparalleled knowledge of “the curious evolutions of criminal law, rather than...appeal or eloquence...
“He is a past master of technicalities and he spends almost as much time studying the committal papers as he does in coaching the witnesses. It is not greatly to the credit of prosecuting attorneys that he usually find something wrong."
It was this attention to detail that disclosed the papers committing 19 Chinese clients accused of peddling drugs didn't state they must pay the cost of their trial. The result: another victory. His most famous case was his defence of Simon Gun-an-Noot, the legendary Kispiox man who held the entire provincial police force at bay for 13 incredible years after the still unsolved slayings of two men near Hazelton.
Simon Gun-an-Noot, second from left, poses with B.C. Provincial Police officers after his eventual surrender. —BC Archives
When Gun-an-noot finally went to trial, it was to be speedily acquitted, thanks in great part to Stuart Henderson.
In 50 years’ practice, he’d never refused a case. "If I refused to take the case of a prisoner," he explained, “at once that refusal would be interpreted as meaning the man was guilty. His chance of acquittal would be seriously jeopardized—and this is a responsibility I refuse to accept.”
Many recalled his back office in the Scollard Building—scarcely eight feet square. But briefs “beat a worn pathway to his door.” The little office had revealed another eccentricity of its snuff-taking master: no telephone.
A Colonist editorial recalled his exploits and character in glowing praise: “His charities and benevolence were many, and scrupulously hidden.... In court he spoke with an old world courtesy and with even, unruffled temper; and his reading of the law was listened to with respect from the highest and most seasoned of benches. His legal conquests were probably without parallel in all Canada, but in spite of that he won both the respect and the friendship of men whom he had defeated most often.
“A fine Canadian, a brilliant barrister, and an innately kind and deeply read man has passed from our midst, after a life of distinguished service.
“His scorning of honours was notorious, but in his own life and record there is that of which many men might justly be proud. To his widow and [three daughters] will go out the sincerest condolences of this community, on whose streets he was an outstanding luminary to the very end."
Justice A.D. MacFarlane said, "He made no exception as to race or colour. He made no difference between rich and poor. He defended the outcasts with his great energy as if he were able to pay him a considerable fee and left nothing undone for him that his resource and ingenuity could devise. He was possessed of indomitable courage and readily exposed himself to attack of those in authority in defence of any position which he as counsel thought he could rightly take on behalf of his client.
“While duly appreciative of public opinion he was the last man to wish soft or unctuous things to be said of him. He was a warrior bold and while full of sympathy for the oppressed or the unfortunate his delight was in making his fight and in it he asked no quarter."
Earlier, another eulogy had summed the enormous contribution Stewart Alexander Henderson made to Canadian courts in but four words: “He made them careful.”
