Pubdate: Sun, October 3, 2004
Author: Erik Floren
Putting Women In Their Place
Emily Murphy best known for quest towards sexual equality in Canada
"Whenever I don't know whether to fight or not, I fight."
Reformer, feminist, writer.
Emily Murphy was many things to many people in her day. Even more so today, it seems.
Appointed an Edmonton police magistrate in 1916, Murphy became the first female judge in the entire British Empire.
Murphy, however, is perhaps best-known for leading the Famous Five in a battle to have women declared "persons" in Canada. Unfortunately, modern revelations have sullied the feisty suffragette's reputation as a great human-rights crusader.
But more about that later.
First her quest for sexual equality in Canada.
It all began on Judge Murphy's first day in court, when a defendant's lawyer immediately challenged her qualifications. Since Murphy was a woman, she was not legally "a person" as defined by the British North American Act (BNA Act), and therefore not qualified to be a magistrate, charged the lawyer.
That challenge went to Alberta Supreme Court, who ruled in favour of Murphy, said Tony Cashman, a local historian and author who once wrote a play about her.
"That was what started it all," said Cashman. "The first challenge was whether women were qualified to be magistrates. Then a group of women in Montreal got the idea of having a woman senator and picked Murphy."
This set into motion the legal challenge known today as the "Persons Case." If women were not legally persons, then they had no rights under the law, reasoned women's groups, who in 1919 began pressing for a woman to be appointed to the Senate.
Ottawa cited the uncertainty over the interpretation of the word "persons" and refused. Again and again.
Finally Murphy stumbled on a legal provision allowing five people to petition the government for a constitutional ruling. Well, actually her brother told her about it.
"Emily Murphy came from a remarkable family," said Cashman. "Her cousin was the premier of Ontario and her two brothers were judges. Her one brother kept picking up on the loopholes the government left when ruling against the women.
"So she lined up Nellie McClung; Irene Parlby, the cabinet minister; and a couple of temperance crusaders - Louise McKinney and Henrietta Muir Edwards - and they became the Famous Five," said Cashman.
The five - all Albertans - petitioned the Supreme Court of Canada to answer one simple question: "Does the word 'person' in Section 24 of the BNA Act include female persons?"
After months of debate, the court concluded no.
The Famous Five refused to accept defeat. Off they went to England to petition the British Privy Council, then the highest court of appeal in Canada.
And lo and behold, on Oct. 18, 1929, the privy council announced: "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?"
Why not, indeed.
Although none of the Famous Five was ever appointed to the Canadian Senate, the ruling succeeded in breaking the sex barrier. Cairine Wilson became the first woman senator in 1930.
Move forward now to present times.
Recent newspaper articles have branded Murphy a racist, and an advocate of the Alberta eugenics program - which called for the sterilization of the mentally unfit.
They cite her book The Black Candle, written more than 80 years ago, as highly contemptuous of Asians and blacks. And it is. In the book Murphy insists certain immigrant groups are intent on smuggling dangerous drugs into Canada.
"It is claimed also, but with what truth we cannot say, that there is well-defined propaganda among the aliens of colour to bring about the degeneration of the white race," she wrote.
She also wrote: "Let us punish these foreign immigrants if they deserve it; let us exclude them from our country if our policy so impels, but let us refrain from making them the eternal scapegoats for the sins of ourselves or of our children."
The book's dark rant on the dangers of marijuana is akin to the film Reefer Madness and is - as seen today - laughable.
"It's very easy to make fun of Emily Murphy about The Black Candle, but at the time that she wrote that, there was very little known about drugs or about the drug trade," said Cashman.
That same lack of knowledge about other cultures led her to form inappropriate opinions about certain minorities.
"Father Athol Murray of Notre Dame College in Wilcox, Saskatchewan had a saying: 'What you don't know, you will fear' - and I think that quote covers a great deal," said Cashman.
Murphy also favoured sterilization of the mentally deficient. Thousands of Albertans were forcibly neutered under the Sexual Sterilization Act before it was repealed in 1971.
"In those days the whole inference was that mentally defective people tended to be criminals. Of course, today we see the real criminals are these super-intellectuals - Enron Corp. would be a classical example. But these things were very little understood then," said Cashman.
"As late as 1939, Reader's Digest, a pretty folksy magazine, had a feature on whether you could control crime through sterilization. These were concepts that were all through society."
Eugenics, unfortunately, were also once popular in Europe and the United States. After U.S. president Woodrow Wilson signed New Jersey's sterilization law, more than 30 states followed suit. In those days, eugenics was considered a scientific approach. Today we know better.
Ontario-born Murphy arrived in Edmonton in 1907 "and married Arthur Murphy, a minister," said Cashman, whose family knew both Murphy and McClung in those early years.
Before she became a judge, the mother of two campaigned for women's property rights. Her persistence led to the province passing a Dower Act, which protected a wife's right to a one-third share in her husband's property.
"That act really helped stabilize society. Before that, if a husband wanted to boot his wife off the farm, there wasn't much to be done about it," said Cashman.
Today Murphy and the Famous Five (along with Quebec human-rights activist Therese Casgrain) are honoured on the back of the new $50 bill and with statutes in Ottawa.
There's no doubt Murphy was a great crusader for women's rights. Just like there's no denying she was a racist.
"This is what we would now consider racism," added Cashman. "But I don't think this one book negates everything that she has achieved."
And there you have the warts-and-all story of Emily Murphy. You be the judge as to her place in history.