This column first appeared in the Victoria Daily Times on June 18, 1938.
Everything in life is a circle. There are no sharp corners. Cause and effect run together all the way. The event that took place a week ago in Ottawa, when a plaque was unveiled commemorating the decision of the Privy Council that women are persons, was a culmination of something that began 20 years ago in the Women’s Court in Edmonton.
Magistrate Emily Murphy had given a decision that enraged one of the lawyers. His client had been given a heavy penalty. The lawyer assailed the decision on the ground that Murphy’s appointment to the position of magistrate was illegal, for women were not persons, under the British common law.
Murphy, being a wise woman, looked carefully into the matter. She often said that one must never belittle the argument of the opponent. She read the famous case of Charlton vs. Ling of 1868 and its ruling: “Women are not persons in matters of rights and privileges, but they are persons in matters of pains and penalties.”
The law had not been rescinded, and there was no doubt that it was still valid, though public opinion had rendered it obsolete. Murphy, as well as some others of us, had interviewed honourable members at Ottawa from time to time on the matter of appointing women to the Senate, and we had received the same reply: The British North America Act had made no provision for women, and the members feared that women could not be appointed to the Senate until this great foundation of our liberties was amended, and that would take time and careful thought.
The clause in the British North America Act dealing with the Senate appointments reads as follows: “Properly qualified persons may from time to time be summoned to the Senate.”
And always there arose that spectre: Women were not persons under the common law of England.
Murphy, whose business it was to know the law, believed that there was a way of getting this matter cleared up. We would ask the Parliament of Canada for an interpretation of this clause. Any five British subjects, of the full age of 21, could petition Parliament for an interpretation of any act.
So one day, near the end of August in 1927, we gathered at Murphy’s home in South Edmonton. It was a perfect day in harvest time. Blue haze lay on the horizon. Wheat fields, now dotted with stooks, were waiting for the threshing machine. Bees droned in the delphiniums and roses. We sat on her verandah and talked the afternoon away. Then we put our names to the petition and it was sent to Ottawa. I wish I had a copy of the letter that accompanied the petition. Murphy was a master craftsman in the handling of a pen. She had no difficulty in finding the apt word.
In November, the Department of Justice referred the matter to the Supreme Court of Canada. But they did not render a decision until April 24, 1928, and then it came as a shattering blow to our hopes.
In the opinion of the Supreme Court of Canada, women were not persons!
Four out of the five judges based their judgment on the common-law disability of women to hold public office, and the other one believed the word “person” in the BNA Act meant male person, because the framers of the act had only men in mind when the clause was written.
We met again, this time in Calgary, and contemplated our defeat. Murphy was still undaunted. We would appeal from the Supreme Court decision. We would send our petition to the Privy Council.
We asked her what we would use for money. Lawyers’ fees, we knew, were staggering. When a lawyer is writing his fees for a service of this kind, his hand often slips. Murphy said she would write to the prime minister. Perhaps he could devise a way. This was every woman’s concern and she was sure that the government would be glad to have it settled. The letter was written, and we had a prompt reply.
Newton Wesley was going before the Privy Council in October and he had generously agreed to take our petition. The petition should have been in Murphy’s name, but it seems names are arranged alphabetically, so our petition reads: “Edwards and others.”
On Oct. 18, 1929, the newspapers carried the black headline: “Privy Council Declares Women Are Persons.”
The Lord Chancellor had given the decision, and it was so simple and plain that we wonder now why we did not think of it ourselves. Lord Sankey found the solution in the British North America Act itself, under two headings:
First: There are clauses in the act where the word “male” persons is used, which leads one to believe that “person” must mean male and female person.
Second: There is one clause in the act where the word “person” must mean male and female. It is Clause 133, which provides that either the French or English language may be used by any person in any court established under this act. The word “person” must include women, as it is inconceivable that this privilege was given to men only.
There were other reasons given in His Lordship’s 14-page judgment, but that was the one that closed the debate.
Now it is all over. The circle is complete. The Business and Professional Women of Canada have graciously placed a memorial plaque in the lobby of the Senate, House of Parliament, Ottawa, to mark this event. The speeches will be over when this appears in print.
There are only two of us left now of the five, and we feel, as did Mrs. Edwards and Mrs. McKinney, that we, like all the women of Canada, are indebted to Emily F. Murphy for this definite, clear-cut victory, which has clarified the position of women in the whole British Empire.