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No. 119
Are Women Persons? The “Persons” Case

by Monique Benoit, Government Archives and Records Disposition

“‘Having done all  --  stand.’ We lose so much, both in private and public life, by receding from the ground we have won, either from indolence or some other cause.” Emily Murphy1

October 18, 1999 marked the 70th anniversary of the “Famous Five” Alberta women2 who fought to have women constitutionally declared “persons” and therefore eligible to sit in the Canadian Senate. In 1928, the Supreme Court of Canada had rejected their request, but a year later, the Judicial Committee of the British Privy Council granted their appeal and found in their favour. Thus can be read at the end of a formal 14-page decision “that the word‘persons’ in section 24 [of the British North America Act] includes members both of the male and female sex... and that women are eligible to be summoned to and become members of the Senate of Canada.”Emily Murphy, the instigator and leader of the movement to have women admitted into the Senate, had stood firm, giving up not one inch of ground.

Emily Murphy had been a judge at the Edmonton Municipal Court since 1916. To support her in her battle, she chose four exceptional women on whom she could count at more than one level: Nellie McClung, Irene Parlby, Louise McKinney and Henrietta Muir Edwards. They were seasoned militants known for their political and social action, as members of the Alberta legislature and activists in the temperance, suffragette and women’s movements. Nellie McClung, like Emily Murphy, was also a writer. Henrietta Muir Edwards, editor-in-chief of a newspaper published for working women, had written a treatise on laws concerning women.

Emily G. Murphy (1868-1933)

Emily G. Murphy (1868-1933), instigator of the Persons Case,
writer, and first woman magistrate in the British Empire. She pioneered married women’s rights, was National President of the Canadian Women’s Press Club 1913-1920, vice-president of the National Council of Women and first president of the Federated Women’s Institutes of Canada. Photo: Courtesy of the Glenbow Archives, Calgary, Alberta NA-273-3

The Department of Justice file on this famous case, kept at the National Archives of Canada,3 is filed according to alphabetical order under the name of Henrietta Muir Edwards. But it was in fact Emily Murphy who spearheaded the process during the two years it took for the case to come to an end. It was she who kept up the correspondence, dug up the information and recommended the attorney to handle the case. Her letters, interspersed with the official documents, give us a glimpse of a tenacious, clever and diplomatic woman.

The issue of women’s admission into the Senate was dear to Emily Murphy’s heart for several reasons. First, in 1916, she became the first woman magistrate in the British Empire and sat in the Women’s Court in Edmonton. On her first day in court, a disgruntled lawyer challenged her ruling against his client on the grounds that Judge Murphy, a woman, was not a “person” and was therefore not able to perform the duties of a magistrate. He based his argument on a decision rendered in 1876 by an English court, a decision which by then had become obsolete but had never been overturned. It stated that “Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges.” “Since the office of magistrate is a privilege, he added, the current magistrate sits illegally. No decision coming from her court may bind anyone.”4

This oppressive taunt was overruled by the Supreme Court of Alberta, which confirmed Emily Murphy’s appointment and the validity of her judgments. But, for the first female municipal judge in the British Empire, the story was far from over; in fact, the disgruntled lawyer had unwittingly given a boost to the women’s cause. During the following years, women’s associations, newspapers, as well as men and women from all provinces, proposed and then demanded Emily Murphy’s appointment to the Senate.5 In 1921, Elizabeth B. Price, publicist for the Women’s Institute of Canada, reported that the National Council of Women, representing 450,000 women, unanimously supported their annual meeting’s resolution that a woman, namely Emily Murphy, be immediately appointed to the Senate of Canada.6



Henrietta Muir Edwards, (1849-1933), journalist, suffragist and organizer, fought for equal rights for wives, mothers’ allowances and women’s rights. She started the Working Girls’ Association in Montréal in 1875, a forerunner of the YWCA. Later, while living in Alberta she compiled two works on Alberta and federal laws affecting women and children. Proposed design for the Henrietta Muir Edwards commemorative postal stamp, 1981, by Muriel Wood and Dennis Goddard. Library and Archives Canada, POS 3703

Footnotes:

  1. Letter to Isabella Scott, October 30, 1930, quoted in Emily Murphy, Crusader. “Janey Canuck”, by Byrne Hope Sanders, MacMillan, Toronto, 1945, p. 252.
  1. English language newspapers from the 1920's called them the Famous Five.
  1. National Archives of Canada, Department of Justice Fonds, RG 13, vol. 2524, 2525, file C- 1044. Unless otherwise indicated, all letters and documents quoted are from this file.
  1. Quoted in Nellie McClung, The stream runs fast: my own story, Thomas Allen Limited, Toronto, 1945, p. 186.
  1. Cleverdon, Catherine L., The woman suffrage movement in Canada, University of Toronto Press, 1974 ed., p. 144.
  1. RG 13, op. cit., letter from Elizabeth B. Price letter to the Hon. C.J. Doherty, June 18, 1921.

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