When Women Weren't Persons

Emily Murphy

I feel equal to high and splendid braveries!
Emily Murphy, 1918

It’s hard to believe that prior to 1929, women in Canada weren’t considered “persons” under the law. Even worse, women in Canada were also prohibited from owning property. If a woman’s husband died, any property he owned was inherited by the nearest male relative or other male of his choice who would then look after and support the widow. Canadian women were excluded from public office as senators, certain professions and universities. Emily Murphy set out to change all that.

Emily Murphy was born in 1868 in Cookstown, a small town in the province of Ontario. Her father, Isaac Ferguson was a wealthy businessman and landowner involved in law and politics. Her grandfather, uncles, and brothers were politicians, judges, or lawyers. Emily’s father raised her as an equal to her brothers and encouraged her to join in their adventures. As prominent members of society, her parents encouraged her to receive formal academic education.

In 1887, Emily married an Anglican minister by the name of Arthur Murphy. Together they had four daughters, but two died when they were very young. The family moved west and finally settled in Edmonton, Alberta in 1907. While her husband was occupied in his work, Emily set out to become acquainted with her surroundings. When she was 40 and all her children had flown the coop, Emily used her new found freedom to organize women’s groups where isolated housewives met and organized group projects. Murphy began to speak openly about the plight of women - the disadvantages and poor living conditions.

One day, she learned of an Alberta woman whose husband sold the family farm and abandoned his wife and numerous children, leaving them without any money and without a home. Alberta law at that time did not leave the wife any legal recourse. This provoked Emily to create a campaign to assure the property rights of married women. Supported by a number of rural women, Murphy pressured the government to allow women to retain the rights of their land. As a result, Alberta passed the Dower Act in 1916 which allowed women to retain a third of her husband’s property. But the Act was weak and insufficient. Unfortunately, it took many years before authorities enforced it. Undaunted, Emily pressed on.

In 1916, Emily learned about two women who were rejected from an Edmonton court because “the evidence was not fit to be heard in mixed company.” Emily argued that the government must then set up a special court to be presided over by women to try other women. The Minister agreed. He offered Emily the position of police magistrate to preside over this special new court. Hence, she became the first woman in the entire British Empire to ever hold such a position.

But on her very first day on the job, a lawyer by the name of Eardley Jackson, challenged her appointment as judge because, he argued, women were not “persons” under the law. The law at that time stated women were eligible for pains and penalties, but rights and privileges. Jackson’s objection was over-ruled, but the issue raged on.

Emily Murphy decided to bring the issue to the forefront by allowing her name to go to the Prime Minister, Sir Robert Borden, as a candidate for the Senate. Even though he was willing to appoint a woman, he was not able to and rejected her because under the law, women were not considered persons.

Murphy decided the law had better be changed. With the help of her lawyer brother, they devised a plan to work through the Supreme Court to ask for constitutional clarification regarding women becoming Senators. Such a question had to be submitted by a group of at least five citizens, but that posed no problem for Murphy. She invited five of her best girlfriends to her house for tea on August 27, 1927 and together they petitioned the Supreme Court of Canada to clarify: Does the word "persons" in Section 24, of the British North America Act, 1867, include female persons?

The arguments were presented on March 14, 1928 (Murphy's 60th birthday), and after a daylong debate, the Supreme Court of Canada decided against the women on April 24, 1928.

Despite this setback, the five women refused to give up. With the approval of Prime Minister Mackenzie King, they appealed the decision. After several more months of waiting, Murphy and her friends finally received the answer they had been campaigning for. On October 18, 1929, the ruling came down: Women are "persons" and can serve in the Senate.

Emily and her friends may have fought the battle, another woman was appointed to the Senate. Emily was never appointed due to geographic restrictions and political allegiances.

Emily Murphy died of diabetes in Edmonton on October 17, 1933 at the age of 65. Her mausoleum drawer lists her many achievements, including the 'Persons' Case.

She and her four friends, Henrietta Muir Edwards, Louise McKinney, Irene Parlby, and Nellie McClung became known as The Famous Five. Their work is honoured today through the work of The Famous Five Foundation at http://www.famous5.ca/.