Murphy, Emily (1868–1933)

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Murphy, Emily (1868–1933)

Magistrate, social reformer, author, and first female magistrate in the British Empire, who initiated and led the famous "Persons Case"—a landmark case in the battle for women's rights in Canada. Born Emily Gowan Ferguson on March 14, 1868, in Cookstown, Ontario, Canada; died at her home on October 26, 1933, in Edmonton, Alberta, Canada; daughter of Isaac Ferguson (a prominent businessman) and Emily (Gowan) Ferguson; attended the private Bishop Strachan School for Girls, 1883–87; married Arthur Murphy, on August 24, 1887; children: Kathleen (b. 1888); Evelyn; Madeleine (1893–1894); Doris (1896–1902).

Began writing career while traveling in Europe (1898–1900); published first book (1901); moved from Ontario to the West (1903); appointed first female magistrate in British Empire (1916); formed famous "Alberta Five" to petition the Supreme Court (1927); Supreme Court victory in the "Persons Case" (1929); retired from the bench (1931).

Selected writings:

Impressions of Janey Canuck Abroad (London, Ont.: C.P. Heal, 1901); Janey Canuck in the West (NY: Cassell, 1910); Open Trails (NY: Cassell, 1912); Seeds of Pine (Toronto: Hodder & Stoughton, 1914); The Black Candle (Toronto: Thomas Allen, 1922); Our Little Canadian Cousin of the Great North West (Boston: Page, 1923); Bishop Bompas (Toronto: Ryerson Press, 1929).

In Canadian history, Emily Murphy is known most for two important events. She was the first woman to become a magistrate in Canada, and she was the leader of a group which secured constitutional recognition that women were entitled to hold public office, a legal victory known as the "Persons Case." These two events—so important in Canadian history and Emily Murphy's life—were interconnected. It was during Murphy's first day as a police magistrate in the City of Edmonton that she was confronted with the insulting and anachronistic notion that women in Canada were not "persons." A criminal lawyer, Eardley Jackson, raised an objection challenging Murphy's jurisdiction as a judge because, as a woman, she was not a "person" within the statutes of Canada. In essence, he was arguing that she legally was not entitled to sit as a judge in the first place. This type of objection continued in Murphy's court and in that of Alice Jamieson , a second female magistrate who had been appointed in the City of Calgary. Eventually the issue landed in the Alberta Supreme Court, which ruled that the common law did not disqualify women from holding public office. Although this was a victory, Murphy was not satisfied. The Alberta Court decision pointed to the reality of public life in Canada but it did not change the law, leaving the question open as to whether women were "persons" in law. Eventually the issue became centered around the issue of appointment to the Canadian Senate. The Canadian constitution (the British North America or BNA act) outlined the conditions under which "properly qualified persons" could be appointed to the Senate by the Canadian government. The government, despite sustained pressure from women across the country, refused to appoint a woman on the grounds that women were not "persons" in law and, thus, not qualified. The issue remained in a stalemate until 1927, when Emily Murphy devised a strategy which forced the issue before the courts for clarification of the meaning of the statute. Eventually, the issue came before the British Privy Council (at that time, the highest court for Canadians). After a 13-year battle which began in her courtroom, Murphy was elated to hear on October 18, 1929, that the Privy Council had declared that women in Canada were "persons."

On March 14, 1868, Emily Murphy was the third of six children born to Isaac and Emily Gowan Ferguson in the small Ontario town of Cookstown. Both parents were recent arrivals from Ireland. Like most Irish immigrants at this time, Isaac Ferguson had arrived in Canada penniless. However, unlike most, he succeeded as a landowner and businessman, achieving prosperity by the time he married. Ferguson's prominence was accentuated by that of his wife. Emily Gowan had social and political prestige in smalltown Ontario because she was the daughter of Ogle Robert Gowan, a prominent politician and founder of the Orange Lodge in Ontario. (Orange Lodge was a secret society formed in Northern Ireland in 1795 to support Protestantism.) The family position was demonstrated each year when they headed out to the front porch to be serenaded by the Cookstown Orange Band in memory of Ogle Gowan.

Nothing ever happens by chance. Everything is pushed from behind.
—Emily Murphy

Emily Murphy also had a number of other influential and prominent relatives. A family cousin, Sir James Gowan, was a Supreme Court judge and senator while another cousin, Thomas Ferguson, was a judge. Her uncle, Thomas Roberts Ferguson, was heavily involved in the politics of the era. The experiences and roles of these relatives undoubtedly influenced the young Emily and her siblings, as did their exposure to prominent people who were entertained at the family home. Playing host to the social and political elite of the province was the norm, and on one occasion the family welcomed the prime minister of Canada, Sir John A. Macdonald, into their home.

Within this environment, Emily Murphy's childhood was happy and carefree. The family was close and loving. Throughout their lives, this intimacy was maintained through letters and occasional family get-togethers even as they moved farther apart. The family's wealth meant that Emily and her five siblings were free of the worry and labor that then confronted poorer children. They played together in their spacious yard, and days occupied by fishing, riding a pony and playing dress-up before a mirror are reflected in Murphy's later childhood memoirs.

Some of these activities reveal that Murphy's childhood was somewhat unconventional for a girl. Perhaps because of the influence of four brothers, she spent her time pursuing what were viewed as "unladylike" activities like tree climbing and fishing. Particularly noteworthy was Murphy's insistence throughout her life of riding horses astride rather than sidesaddle, which was considered the dignified pose of ladies. Said Murphy: "A girl who rides a horse sidewise looks like a heap of clothes hanging on a clothespeg, and likely to fall off at any minute."

Yet it cannot be denied that distinctions were made between male and female in the treatment of the Murphy children, most notably in education. All the children received private school educations at reputable institutions once they reached their teenage years. Emily was sent to the prestigious Bishop Strachan School for Girls in Toronto at age 15. Here the major subject areas were religion, literature, and music, with physical activity confined to such sports as croquet and tennis. The academic instruction was a continuation of the training Murphy had received at home, where music and literature had been complemented by instruction on how to write and speak properly. At Upper Canada College, however, her brothers were exposed to a much wider curriculum. The education she received was typical of that given to young ladies at the time. Women were trained for their eventual role as wives of prominent men. As such, they were expected to be ornaments to their husbands; hence, the emphasis on proper speech and the ability to sing, play an instrument, and make light conversation about "ladylike" topics, such as classic literature. Murphy never did excel at music, but she loved to read, absorbing many of the classics as well as books that were considered inappropriate.

In her first year at the school, Emily was introduced to her future husband Arthur Murphy, a meeting arranged by two of her brothers at his instigation. An attractive man, 11 years her senior, Arthur was studying to enter the ministry. Apparently, he had noticed Emily on several occasions, since their families lived in close proximity, and had decided he would like to marry her. As for Murphy, it is not clear how she felt. Over the next four years of school, she dated and flirted with a number of young men as was considered normal for a girl of her age, although years later, on reflection, she admitted, "There

was never anyone, really, but Arthur." On August 24, 1887, just two months after Emily's graduation from school, the couple were married at the Anglican Church in Cookstown.

By that time, Arthur had become a minister with the Anglican Church and had been assigned to his first parish in Forest, a small village 160 miles southwest of Cookstown, where Murphy plunged successfully into her new role as minister's wife. She took Bible classes, organized bazaars, played the organ, and joined the missionary society. (A common activity for the wives of the middle class, these societies raised money to pay for missionary activities in foreign countries.) Still, Murphy had a playful spirit, an extremely energetic nature, and a tendency to question society's norms. These were the qualities that would lead her to make an indelible imprint on Canadian society and politics; they also had a tendency to lead her into trouble in her new role as minister's wife, such as the time she burst into laughter in church at the perceived pretentiousness of the choir leader walking up the aisle. These events probably challenged her relationship with Arthur, at least in the early years, given that he was older and much more somber. However, the couple quickly developed a strong relationship based on love and companionship. Not only did Murphy support Arthur in his career pursuits, but Arthur, over the years, became her strongest advocate as she ventured outside of her prescribed role and into the sphere of social reform, politics, and the law.

Over the next ten years, the couple moved frequently as Arthur was transferred to four different parishes. During this time, the family grew. A daughter, Kathleen , was born within a year of their marriage, followed by Evelyn . In 1893, Murphy had a third daughter, Madeleine, but the child was born premature and died after only nine months. In 1896, their fourth and final child, Doris, was born. By 1897, Arthur had developed a reputation as a dynamic preacher and compassionate minister. Consequently, he was asked to become a missionary, which required that he travel almost continuously around Ontario, preaching to different areas. He continued this role until 1903, but it was steadily enlarged when he was posted in England from July 1898 to December 1899 and then to all of Canada in the early 1900s.

These later years of constant moving and disrupted home life were difficult for Murphy. Arthur worked hard and often was not at home. At times, the family had no established residence and their income fluctuated substantially. Despite the insecurity, these years provided Murphy with opportunity to write. With Arthur away, she spent less time assisting him with his work, which left her time to pursue other activities, especially once the two older girls were off to boarding school. Murphy began to write in diary form about her experiences and impressions of the people and events she encountered. In many ways, her world view was expanding. Traveling with Arthur, she was exposed to life outside the middle class and the small-town existence she had known to that point. Once in England, Murphy spent much of her time socializing with the elite, traveling and sightseeing. The result was the publication of her first book, The Impressions of Janey Canuck Abroad (1901), an account of her impressions of the sights and people of Europe. In an age when reading was a popular form of entertainment, there was a large demand for books of this type. As well as being light-hearted and enjoyable to read, the book was insightful and witty, and it was an immediate success in both England and Canada.

Murphy's reputation as a writer and the demand for her work grew steadily after 1901. Shortly after the publication of her first book, she was asked to contribute to a new general interest magazine entitled National Monthly of Canada. Her contributions became regular, leading eventually to an appointment as women's editor and then as literary editor. Numerous other magazines also asked her to contribute articles, edit or review materials. This writing was substantial enough that on several occasions, such as the fall of 1902 when Arthur was bedridden with typhoid, Murphy was able to support the family from the proceeds.

Her life underwent a significant change in the summer of 1903, when it was decided that the family would move to Swan River, Manitoba, an unsettled area of the Canadian West. The youngest child, Doris, had died of diphtheria complications in November 1902. Combined with the fact that both Murphy and her husband had been stricken with serious bouts of typhoid earlier in the year, the family wanted fresh air and a change of lifestyle. Their move put an end to Arthur's career as a minister and led him into speculation in land, minerals, and timber, an occupation which engrossed many men in the newly opening Canadian West. For Murphy, it meant the beginning of her role in Canadian politics and law.

Initially, life in the West was quiet and relatively uneventful. Swan River was an isolated outpost, and Murphy spent her days running the farm they had purchased (as Arthur was usually away) and writing for several magazines. Her love of the West began. During these first four years, she immersed herself in the natural environment, riding horses, fishing, and studying the local flowers and animals. Still the isolation of Swan River, particularly during the long, bitterly cold winters, probably left her lonely and restless at times.

Thus, Arthur's decision to move to Edmonton, Alberta, in 1907 was likely less of an upset for her than previous moves. Although newly settled and somewhat rough in amenities and character, Edmonton was an urban area. Murphy quickly became involved in the regular parties and social activities of the local elite. But the move to Edmonton did not merely return her to the society of other middle-class women. It also introduced her to the reform movement that was spreading across the country and was particularly active and radical in the cities of the West. The movement encompassed a large number of issues and groups, but in general was centered around the fight for women's rights (including the vote) and a new social consciousness which demanded improved facilities and social services for the care of the poor and dispossessed.

To some extent, Murphy had always pursued charitable activities in the different communities in which she lived. It was accepted at the time that the wives of affluent men should devote their time to charity. However, what was changing for women like Murphy was the belief that charitable acts were not enough and that social responsibility demanded the provision of services by the whole community through government legislation and funding. Accompanying this demand was the belief that women required a greater political voice through the vote and access to public offices. Over the next few years, Murphy became involved in a number of issues and organizations. She succeeded in ensuring the election of women as school trustees in Alberta, was involved in the suffrage movement, arranged for the establishment of public playgrounds and municipal hospitals in the city, and sat as vice-president of the Alberta Association for the Prevention of Tuberculosis. Perhaps most important to her during these years, and what may be considered her first victory, was that she forced the Alberta government, in 1911, to enact the Dower Act. This guaranteed that wives would receive one-third of their husband's estate, even if there was no will; prior to 1911, women in Alberta could work throughout their lives on the family farm only to be left destitute with widowhood.

Murphy's most significant public appointment occurred not after a long battle, but rather unexpectedly. In the summer of 1916, members of the Local Council of Women approached Murphy with a problem. Concerned with the treatment of women in the courts, they were frustrated because they had been refused entrance to the local police court on the grounds that the evidence was unfit to be heard in "mixed company." To Murphy the solution was quite simple; if the evidence was not fit for mixed company, then women must demand a new court where women would be tried by women. Known for her work and for being outspoken, Murphy was asked to present the proposal to the attorney-general, which she agreed to do. Prepared for a long battle, she was undoubtedly shocked when the attorney-general of Alberta not only agreed to the proposal but asked her to become the police magistrate of this new woman's court. Several days later, on June 19, 1916, Murphy was sworn in as the first female magistrate in the British Empire.

This "first" would have been enough to secure for Murphy a place in Canadian history, but her most significant victory was yet to come. The constant irritation of having her authority challenged in the court due to the dubious standing of women in Canadian law led Murphy to become involved in the movement to have women appointed to the Canadian Senate. By 1918, women in Canada could vote in federal elections and take their seat, if elected, in the House of Commons. Although the Senate was the "upper" house of the government, its role by 1918 was largely symbolic; the Commons was the actual arm of government. Still, the federal government refused to appoint a woman to the Senate, arguing rather meekly that the constitution used the term "persons" when referring to eligibility and it was not clear whether women were "persons" in law.

For the next nine years, Murphy and other women tried to effect a change by regularly petitioning the government to appoint a woman and by submitting the names of acceptable female candidates. The futility of this approach was evident by 1927, when Murphy developed a new strategy. Her brother Bill, a lawyer, informed her that there was a provision in the Supreme Court Act which stipulated that five people could petition the court for an interpretation of a constitutional point. Murphy quickly contacted four other women, all of whom were prominent, wellknown figures in the Canadian women's rights and reform movements: Nellie McClung, Louise McKinney, Henrietta Muir Edwards , and Irene Parlby . Meeting in August 1927, the "Alberta Five," as they came to be known, put together their petition. Directed to the Supreme Court of Canada, the petition asked quite simply, "Does the word Persons in Section 24 of the BNA Act of 1867 include female persons?" Yet the matter would not be settled simply or quickly.

The case was heard in March 1928, but the women were to be disappointed one month later when the decision came down. The Supreme Court argued that the BNA Act had to be interpreted within the context of when it was written (in 1867). As women did not hold any public office at that time, it could be assumed that "women" were not included in the word "persons." The decision effectively strengthened the hand of all those who wished to deny women the right to public office. However, Murphy was determined. She immediately decided they would appeal to the Privy Council in London. This final hearing was held on July 22, 1929, after which the parties had to wait three months for a decision. But the wait was worth it. On October 18, 1929, Murphy received word that the Privy Council had decided that women were indeed "persons" and, thus, entitled to appointment to the Canadian Senate. In the decision, the Court argued:

The exclusion of women from all public offices is a relic of days more barbarous than ours … and to those who ask why the word [person] should include females, the obvious answer is, why should it not?

The months that followed the decision were celebratory for Murphy, for women's organizations, and for many Canadians. Congratulations poured in from all over England and Canada, from both prominent and everyday people. The "Alberta Five" were inundated with requests to attend special engagements and to make speeches. Eventually, however, attention was directed towards the government, which, it was felt, was now obligated to appoint a woman to the Senate. Many believed the obvious choice was Emily Murphy. The government apparently felt otherwise and appointed an alternate candidate, Cairine Wilson . Whatever the reason for this decision (which is still debated), there is no doubt that Wilson was far less aggressive and outspoken than Murphy.

Despite the centrality of the "persons" case in Murphy's life, it was only one of many pursuits that occupied her time during these decades. Along with the everyday demands of her work as a police magistrate, Murphy had continued with her reform activities and her writing. During the years 1912 to 1929, she released five additional books. Seeds of Pine and Open Trails were similar to the "Janey Canuck" books, as they were witty and lively descriptions of her experiences. The Black Candle, however, was a very different book which stemmed from her work as a magistrate. It was a detailed and comprehensive analysis of the problem of drug trafficking and addiction in Canada; even by modern-day standards, it remains an informative and insightful examination of the problem.

By 1930, Murphy was beginning to find that she was losing some of the energy that had allowed her to do so much. Around 1913, she had been diagnosed with diabetes, and although insulin was available after 1922, Murphy never used it. By the 1920s, her health was deteriorating, and she was frequently ill. In November 1931, she retired from the bench, citing the fact that she had passed the age of retirement (she was 63) and that she needed more time to devote to her writing. Though her declining health was probably also a factor, there is no doubt that she did wish to spend more time writing. In high demand by magazines and newspapers, she always had work needing completion.

For the next two years, she devoted herself to writing. On the day of her death, it is reported that she had spent her time at the library, conducting research for an article. Her death, on October 26, 1933, was unexpected. Around midnight, Murphy's daughter Evelyn heard a cry and rushed to her mother's room to find her already dead. The cause of death was reported as a cerebral emboli with diabetes as a contributing factor.

Emily Murphy's death was a shock to all who knew her, personally or through her work. Condolences were sent by people from all over Canada, including the prime minister. Newspapers and magazines paid tribute to her character and her contributions through their obituaries. Her funeral, held on October 30, was attended by hundreds. Perhaps her greatest honors came years later. In June 1938, a bronze plaque was unveiled in the Senate lobby honoring the "Alberta Five." Eventually, the National Historic Sites and Monuments Board gave Murphy their highest honor, designating her "a person of national historic importance." It was evident to all that her accomplishments had assured her an important place in Canadian history.