Emily Murphy and The “Persons” Case

A prominent member in Canada’s history and one of the famous five, Emily Murphy was born on March 14, 1868 in Cookstown, Ontario and died at 65 on October 17, 1933. Born into a prominent legal family, she attended a private school in Ontario which later gave way to the publishing of her patriotic travel sketches during 1900-1906 under the pseudonym Janey Canunk. However, rather than continuing with that endeavor, she became actively involved in issues concerning the welfare of women and children.

famous five- emily murphy

After becoming the first woman appointed to the Edmonton Hospital Board, she began a campaign against the property laws of that time describing that if a husband sold a property and moved out, the wife and children would be left with nothing. After a few years, the Alberta legislature passed the Dower Act which gave women the legal right to 33% of their husbands company if such a situation occurred.

Murphy was also a member of the Equal Franchise League and worked with Nellie McClung, another member of the famous five, to help get the vote for women in Alberta..

However, probably the most defining moment in her career occurred in 1916 when she and a group of concerned women attended the trial of some women accused of prostitution. Intending to be of support to the women, they were refused entrance under the grounds that the trial was “not fit for mixed company”.

Murphy, seeing the injustice of these women being trialed only by men, took the issue to the Attorney General, protesting that if these women couldn’t be tried by both men and women then they should be tried by a female judge. Surprisingly, the Attorney General agreed and Murphy became the first female magistrate in Canada.

Now switching gears a little bit, as I mentioned in an earlier post, within the British North American Act of 1867 there described the qualifications of someone who was eligible to vote in Canada. In this, they used the word “persons” to refer to one or more persons and the word “he” to refer to an individual. Thus, many argued that only men could be “qualified persons” as is what is required for someone to be appointed to Senate. Therefore, when Murphy began working as a judge, some challenged her on the grounds that women are not legal “persons” under the British North American Act. As many said in challenge to Murphy’s position, “Women are persons in matters of pains and penalties, but are not persons in matter of rights and privileges.”

famous five

For twelve years, many women spoke out against this and it wasn’t until Murphy found a section of the Supreme Court Act that allowed any five persons the right to challenge the government for a ruling on a constitutional point that there seemed to be a light on the horizon. Murphy gathered four other Albertan equal rights activists to accompany her: Nellie McClung, Irene Parbly, Henrietta Muir Edwards, and Louise McKinny. Together, they challenged the Supreme Court of Canada, asking them to “answer whether the word ‘persons’ in section 24 of the British North American Act included female persons.” After five weeks they replied that it did not.

Rather than giving up there, the famous five took their case to the Privy Council of England, the highest court of appeal for Canada at that time, and in reply, they decided, “the exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word ‘person’ should include females, the obvious answer is, why should it not?” This decision was made on October 18, 1929 and a few months later, on February 15, 1930, Carrie Wilson was named Canada’s first female senator.

“Emily Murphy,” Kate Nelligan, accessed on December 31, 2014, https://www.historicacanada.ca/content/heritage-minutes/emily-murphy

“Biography of Emily Murphy,” Tejvan Pettinger, last updated February 1, 2014, http://www.biographyonline.net/women/emily-murphy.html

“The Persons Case- A Mileston in the History of Canadian Women,” Susan Munroe, accessed on December 31, 2014, http://canadaonline.about.com/cs/women/a/personscase.htm

“The ‘Persons’ Case,” accessed on December 31, 2014, http://sen.parl.gc.ca/portal/publications/factsheets/fs-women-e.htm


1 thought on “Emily Murphy and The “Persons” Case

  1. Pingback: Profile of a Hero (Part 5 of 5) | GIRLVILLE

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