Women in Public Life: The Canadian Persons Case of 1929

Abstract

On 18 October 2000, a monument to five Canadian women was unveiled on Parliament Hill in Ottawa. The five larger than life bronze figures were the first statues of women other than Queen Victoria and Queen Elizabeth II ever to be placed within the precincts of the Parliament of Canada. The five women were honoured with a place at the centre of the Canadian state because they had won the right for women to be appointed to the Canadian Senate. After their success in winning the federal vote in 1918 and the election of the first woman Member of Parliament in 1921, the death of an Alberta senator revived Alberta women's militancy, and together with women across Canada they campaigned to have women appointed to the upper house of the Canadian Parliament. But the federal government said that women could not be appointed to the Senate because they were not 'qualified persons' under the Canadian constitution. The federal government promised action to change the constitution to enable women to be appointed, but they dragged their feet, so Judge Emily Murphy of Alberta decided to take the legal route. This went all the way to the Judicial Committee of the Privy Council in London who overruled the Supreme Court of Canada and pronounced on 18 October 1929 that women were persons and were eligible for appointment to the Canadian Senate.1 The Privy Council ruling was historically important and far-reaching beyond the point at issue. It has been described as 'the event that marked formal sexual emancipation' (Sachs and Wilson 1978: 40). The legal effect of the ruling was restricted to an interpretation of the Canadian constitution and would be binding only in Canada. However, the arguments put forward by the Attorney-General of Canada against the appointment of women to the Senate covered in detail the reasons going back to Roman times why women were not considered to be persons and were under a legal incapacity to hold public office. The Judicial Committee overruled all those arguments, and declared for the first time in history that women were legally persons. Because Canadian law was based in English common law, the pronouncement by the Judicial Committee, which was then the highest court of appeal in the Empire, would have persuasive authority wherever English common law held sway. The case was symbolically important in establishing women's constitutional right to participate in all levels of government in both Canada and the UK. Before the Privy Council ruling in 1929, women were defined in English common law as 'persons in matters of pains and penalties, but not in matters of rights and privileges' (Benoit 2000: 2). In other words, women were persons when it came to paying taxes and being punished, but notwithstanding advances that had been made in women's status in the late nineteenth and early twentieth centuries, judges and legislators could still declare that women were not persons for the purpose of having the right to participate in public and professional life. The Privy Council ruling meant that after centuries of exclusion, women could be admitted in their own right to the hallowed corridors of power. The monument of the Famous Five, as the five women are known, is a public symbol at the political centre of the Canadian state which recognises that women belong in the public sphere. In this article, I will describe the Persons Case,2 as it is known, and how it helps us to better understand the nature and depth of male resistance to admitting women as equals in the sphere of public life, resistance which women still encounter overtly and covertly today. The Persons Case was the vindication of a sixty-year battle which had begun in Britain in the 1860s, and during which women in Britain and in Canada had sought - in vain - for a determination by the courts that they were entitled to participate in public life, from which they had consistently been debarred simply because they were women, even though they otherwise had all the necessary qualifications. …