Emily Murphy was a writer and self-taught legal expert who became the first female magistrate in the British Empire. She fought to have women recognized as people in the eyes of British law.
"Nothing ever happens by chance. Everything is pushed from behind." ~ Emily Murphy
Emily Murphy was born on March 14th, 1868 in Cookstown, Ontario, into a wealthy family prolific in business, politics, and the law. Included among her relatives were two Supreme Court judges, and her father was a businessman who encouraged his children to be involved in his endeavors.
Emily was schooled at a private institution and her education was liberal and broad, and at home discussions of politics and legal matters were frequent.
While attending school in Toronto, Emily met Arthur Murphy, a theology student she would marry in 1887. Arthur began a career as an Anglican minister and entrepreneur, and the couple had two children.
Emily was a woman of various talents and had no trouble expressing her opinions. She was self-taught with regard to legal affairs, spurred on in part by her family's professional background. She was an avid writer and adopted the name Janey Canuck.
Under this name she published four very popular books of personal sketches, Janey Canuck in the West (1901), Open Trails (1912), and Seeds of Pine (1914). Known for her sharp wit and humor, the books contained entertaining travel sketches but also reflected a concern for the welfare of children and women, causes Emily was increasingly drawn towards.
In 1903 Emily and her family moved to Edmonton, Alberta, and she began a campaign to ensure the property rights of married women. It took years of organizing and persistent pressure from Emily and the public, but in 1911 the Alberta legislature passed the Dower Act, protecting a woman's right to one-third of her husband's property.
Emily was active in a number of different professional and volunteer organizations and held executive positions, including President of the Canadian Woman's Press Club (1913-1920) and first National President of the Federal Women's Institutes of Canada.
In March of 1916, Emily and other members of the Edmonton Local Council of Women tried to attend the trial of several women who had been arrested as prostitutes, the circumstances of which were deemed questionable. The judge felt the content of the testimony was "not fit for mixed company," however, and the women were ejected from the court.
Emily would not hear of this and took her argument to the provincial Attorney General, stating "If the evidence is not fit to be heard in mixed company, then ... the government … [must] set up a special court presided over by women, to try other women."
To her surprise the Minister agreed, and offered Emily the position of Police Magistrate. It was not the response Emily was looking for (she had not been personally volunteering for the position), but it was a step forward nonetheless, and she accepted.
|1916, Murphy as police magistrate. Photo courtesy PAA.|
In 1922 she published a book called The Black Candle that detailed the dealings of the drug trade, the contents of which led to laws governing narcotics that would remain in effect for over 40 years.
The Persons Case
As the first female magistrate, it was no surprise that Emily was treated to discrimination on her very first day in court when a lawyer challenged her position. How could they respect her authority, he argued, when by the British North America Act of 1867, a woman is not even considered a person? This argument coincided with another along the same lines, that opposed the appointment of a woman into the Canadian Senate.
At the crux of this argument was a decision rendered in 1876 in an English Court that 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."
According to this ruling, the lawyer argued, Emily's position as magistrate was illegal, as holding the office of magistrate was a privilege. "No decision coming from her court may bind anyone," he declared.
The matter was taken to the Supreme Court of Alberta, which backed Emily and confirmed her appointment, but this would not be the end of it. Unwittingly, in seeking to make a point and assert his dominance in the courtroom, the male lawyer had provided Emily with a new goal and the motivation to pursue it, and she vowed to have the outdated law changed.
For the next twelve years, Emily enlisted the support of numerous organizations and individuals in petitioning the court, but to no positive end. When that approach failed, Emily focused her efforts. From studying the law, she knew that any five interested persons could petition the government for a ruling on a fixed point.
To aid her in her fight, from among her associates she chose four exceptional women, known for their experience and militance in legal and social action.
The "Famous Five"
Two of these were former Members of the Alberta Legislature; Nellie McClung and Louise McKinney. Nellie was a suffragist and known for her efforts for human rights, while Louise was a long-time petitioner against alcohol and cigarettes.
The third petitioner was Henrietta Edwards, an experienced advocate for women's rights and with unparalleled knowledge of the laws pertaining to women and children.
Irene Parlby was Murphy's fourth choice, a Minister without Portfolio in the Alberta Legislature. Irene had entered politics with the goal of improving the lives of the rural women of Alberta, and her participation signified the support of the Government of Alberta.
The women collaborated and submitted the Persons Case, as it became know, demanding that women be legally named "persons" in Canada, and therefore eligible to appointment to such positions as Senator. It took two years for a decision to be made, with Emily spearheading the effort and maintaining correspondence between the courts and the women's attorney, but in March of 1928 the decision came back from the Supreme Court of Canada: the request was denied.
The women did not stop there and took their case to the Judicial Committee of the British Privy Council on appeal. On October 18th, 1929, the court ruled in their favor, stating that women were indeed legal persons, and that women were "eligible to be summoned to and become members of the Senate of Canada."
Bid for Senator
Over the course of Emily's career, she gained the support of numerous organizations and newspapers, many of which voiced their opinion that she be the first female member of the Senate. As early as 1921, before any legal decision was even made, publicist Elizabeth B Price announced that the National Council of Women (representing nearly half a million women of Canada) unanimously supported the appointment of Emily Murphy to the Senate of Canada.
Though legal following the celebrated ruling of 1929, Emily Murphy would never attain the position of Senator, and she died of diabetes in 1933.
She is remembered today not only for her tenacity and wit, but for the vision she had for women, and her unwavering fight to right whatever injustices she saw in both her courtroom and the wider society.
"The world loves a peaceful man, but it gives way to a strenuous kicker.”