Four: Emily Murphy

Person For All Seasons

Thestature of Emily Murphy as a Western Canadian giant has grown in recent years. A recent biographer, Christine Mander, in Emily Murphy: Rebel, concludes she was an individual "for all seasons" and this is probably the best explanation. Beyond any doubt, she was unique, someone whose inner force no part of Canada or any nation produces in either sex more than once or twice in a generation. Among her many roles were those of a judge; wife, mother and neighbour, crusader for equal rights; author and journalist; and social reformer extraordinaire. Her story embodies a large measure of the determination exhibited by so many individuals who settled in the West.

She was born Emily Ferguson in 1868 at Cookstown, about 60 miles north of Toronto, and raised in a tradition-minded and prosperous home. Her father, Isaac, had arrived from Ireland at the age of twelve, stepping ashore with his mother, who had been widowed on the trip across the Atlantic, and five other children. Her mother, Emily Gowan, was also from an Irish-Canadian family, whose patriarch, Ogle R. Gowan, was a twenty-seven year member of the provincial parliament and the founder of the Orange Order in Canada.

All of the six Ferguson children were raised on an estate with access to ponies and other luxuries. Their parents insisted on equal sharing of household duties, and all were taught to write and speak well. Emily particularly enjoyed tree climbing, sucker and sunfish fishing and cricket. She was known as "Sunshine." Three of her brothers would become lawyers and the fourth, Gowan, a doctor. She performed as a youthful actress in their Conservative home in front of visitors such as Sir John A. Macdonald and Sir Charles Tupper. Mander sums up her early family life as being one of "affluence, accomplishment, affection and high ideals."

At fifteen, Emily was sent as a boarder to the fashionable Bishop Strachan School for Girls in Toronto. She was homesick initially, but soon became an earnest and capable student, assisted considerably by an extraordinarily good memory which would serve her well throughout her life. One day, two of her brothers came by the school to introduce her to Arthur Murphy, the man who would become her future husband, who was eleven years her senior. Murphy, who was studying for the Anglican ministry, had decided earlier as a neighbour of the Fergusons that he wanted to marry Emily. He instigated the first meeting and then persisted in his efforts to win her. They met as frequently as possible despite the school rules forbidding such meetings. On their first encounter, he said, "Hurry and grow up so! can marry you." Although Emily evidently continued to fall in love with others over the next four years, she would insist many years afterwards that "there was never anyone, really, but Arthur." They were married at an elegant wedding the summer after she graduated and established their first of several homes near Lake Simcoe where Arthur had his first parish church.

The nineteen-year-old bride threw herself into the role of minister’s wife: Bible classes, the presidency of the missionary society, playing the organ and organizing bazaars. She was, as she later noted, "acquiring a stability that fitted me for half a dozen other duties." Over the next decade, there were other moves for the family in south-western Ontario. At a church in Chatham, which had earlier been a refuge for blacks fleeing American slavery, she spoke out for understanding. Three daughters had arrived by the time they left Chatham, Kathleen, Evelyn and Madeleine, but Madeleine, who had been born prematurely when her mother walking down the stairs tripped over her nightgown, left heartbroken parents when she died at nine months.

The next move was to a church at Ingersoll, where the Murphys’ fourth daughter, Doris, was born. Emily, now 25 years old, was becoming more independent. She joined firmly on the affirmative side in a raging controversy on the issue of women serving on church vestries, arguing that "women could contribute much to the administrative body of the church." Also at about this time she entered what she herself termed "the loneliest place on the curve of her religious life," when she found herself deeply involved in a skeptical phase of her intellectual development. Her honesty, which was characteristic of her entire approach to life, continued both to bind people to her with hoops of iron and to vex her opponents.

She began to use her gifts with words and prodigious memory to help Arthur with his sermons. Life for the family was full and good until the day Arthur’s bishop asked him to become a missionary in Ontario without either a set salary or a home. For the next two years, the entire family moved about from parish to parish. With time on her hands, Emily began to nibble on sweets, little knowing that diabetes would later strike her and probably contribute to her death. The missionary years opened her eyes to the very bad social conditions of the Ontario poor. She began to write about what she saw in her diaries; these entries would later became the basis for numerous articles.

In mid-1898, the Murphys eagerly accepted an invitation to preach in England. On board ship, while enduring patronizing comments about Canadians from English and American passengers, Emily resolved that in future she would write under the name "Janey Canuck," that being the female equivalent of "Johnny Canuck." In Liverpool and later in the East End of London, she was deeply disturbed by even worse conditions than she had seen in south-western Ontario: prostitutes, beggars, and "poverty-distorted children."

In late 1899, the Murphy family crossed back to Canada. Emily was extremely happy to be home: … once more in the first, best country, God’s fairest gift to man -- the land of the Maple." The couple bought a home in Toronto, and Arthur continued to do missionary work with a comfortable salary paid from England. A mood of buoyancy came to both Canada and Britain with the succession of the dour Queen Victoria by her fun-loving son, Edward. Emily’s first book, The impressions of Janey Canuck Abroad, was published and became an immediate success in Britain and Canada. She soon became a regular contributor to a popular magazine, National Monthly of Canada, and eventually became Women’s Editor. One piece she wrote at the time pleaded for the suspension of the ban on immigrants to Canada from China.

In 1902, Arthur and then Emily contracted typhoid, which brought them close to death. But both recovered and Arthur secured a church near his family’s farm where his mother sought to restore some meat to his bones. While he was gone, six-year-old Doris caught the dreaded diphtheria and died just after asking her mother to sing her favourite hymn, "The Little Lord Jesus." Her mother’s grief knew no limits when they buried her next to Madeleine at Cookstown.

With the catastrophe a little behind them, the Murphys accepted a medical opinion that Arthur should seek exercise, fresh air, and a changed environment. Emily reluctantly agreed to move to Swan River (population 1,300) in north-western Manitoba where Arthur had earlier bought some timberland. Leaving their remaining two girls at a boarding school in Toronto, the couple in 1903 joined the international sea of humanity sweeping into the Prairies. Her first impressions of bustling Winnipeg, the urban gate through which virtually every newcomer was then obliged to enter Western Canada, were extremely favourable.

She wrote: "How the sun shines here in Winnipeg! One drinks it in like wine. And how the bells ring! It is a town of bells and light set in a blaze of gold. Surely the West is golden -- the Sky, flowers, wheat, hearts.

"Winnipeg is changing from wood to stone. She is growing city-like in granite and asphalt. Hitherto, banks and hotels were run up overnight, and had to pay for themselves in the next twenty-four hours.

"Winnipeg has something western, something southern, something quite her own. She is an up-and-doing place. She has swagger, impelling arrogance, enterprise, and an abiding spirit of usefulness....

"On the streets of Winnipeg, there are people who smile at you in English, but speak in Russian. There are rushful, pushful people from ‘the States’, stiff-tongued Germans, ginger-headed Icelanders, Galacians, Norwegians, Poles and Frenchmen, all of whom are rapidly becoming irreproachably Canada. In all there are sixty tongues in the pot....

"Every Mother’s son of them is a compendium of wordly wisdom and a marvel of human experience. What more does any country want?"

Swan River, at the time two days by train beyond Winnipeg, must have been a severe disappointment for the newcomers, but Emily tried everything -- even duck shooting. One day at forty-eight below zero, they set forth in a horse-drawn sleigh to inspect the timber field, spending the night at a Doukhobor village. While in camp, Emily met a number of Cree and Chippewa Indians, gaining a respect for their independence and forest skills.

Gradually, Arthur’s timber operation began to produce some income and he made more money in land speculations. Emily began to review books for The Winnipeg Tribune newspaper as well as sending pieces to The National Monthly. Her work in helping to manage the timber operation, which soon included five employees and seventeen horses, kept her away from the "Votes for Women" issue which in 1906 was beginning to preoccupy fellow western women, such as Winnipeg’s Nellie McClung. Four years later, when Arthur decided to seek new business opportunities further west in Edmonton, Emily was not in the least sorry. She had experienced enough of bitter cold, wolves and bears. She longed for the "sweet security of streets, the pushing crowds, the call of the latest editions, the velvety sweep of feet, the whir of the automobile, the glare of the stage, the long rows of horses, and all else that once I hated."

The years 1907-1916 in Edmonton were golden ones for the entire Murphy family, and Emily became a convinced Westerner. As the new capital of a new province, Edmonton’s population was diverse and growing rapidly from the eighteen thousand there when the Murphys arrived.

Arthur engaged in coal mining and later speculated in city real estate. Kathleen and Evelyn were rapidly growing up when their mother first took aim at the dower issue. Under the Alberta law of the time, a husband could legally sell his land and pocket the proceeds without sharing a dime with his wife and children. Emily quickly marshalled the facts of the issue, wrote articles and otherwise started the campaign rolling across the province. Several times, the provincial legislature turned down a Dower Bill to award a third of common property in a marriage to wives, but finally passed it in 1911. Many Albertans were delighted with the success of Emily’s campaign.

During this time and until 1912, she was literary editor of The Winnipeg Telegram. She also completed in 1910 her next book, Janey Canuck in the West, which was such a success that it remains in print today. Becoming the first woman member of the Edmonton hospital board, she filed a devastating report on the conditions of a local hospital. She became president of the Canadian Women’s Press Club. She published two more books, Open Trails in 1912, and Seeds of Pine in 1914, both of which sold well. She later reported for Collier’s Magazine on a five-day steamer trip up the Athabasca river to Lesser Slave Lake. In 1911, she became a good friend of Emmeline Pankhurst, the English suffragette, during her second North American speaking tour. When Nellie McClung, founder of the Political Equality League in Winnipeg, moved to the Alberta capital in 1914, she and Emily became friends and allies in the cause. They had the satisfaction in 1916 of seeing Alberta become the third province in the nation to provide the franchise to women. The Canadian frontier was establishing itself as fertile soil for democratic reforms.

In 1916, urged by the local Council of Women, Emily went to the office of the Alberta Attorney General, C.W. Cross, to request him to establish a women’s criminal court presided over by a woman. Soon afterwards, she was appointed by the provincial Liberal government of Arthur Sifton to be the first female judge in what is now the Commonwealth. Congratulations flowed into an ecstatic Murphy home from seemingly everywhere. The new police magistrate was soon studying books of court procedure and law. Her first anxious day in court, which she later said with her characteristic good humour, was "as pleasant an experience as running rapids without a guide," was a unique experience. The police and lawyers, being unsure what to call her, mostly called her ‘‘Sir.’’

On that very first day, defense counsel Eardley Jackson objected to her right to hear his client’s case because she was not ‘a person’ within the meaning of the relevant statutes. He was in effect arguing that the nineteenth century English common law, which astonishingly had ruled that women were persons in matters of pains and penalties but not in matters of rights and privileges, barred her from being a judge. Emily noted the objection without ruling on it and heard his case. The Alberta Supreme Court later ended the dispute, but only within the provincial boundaries, when it ruled that no judge could be disqualified from holding public office on account of sex.

This was scarcely the end of the obstacles to her successful judicial career in the Women’s Court. People opposed to her appointment created frequent annoyances. For example, she would arrive at her court to find that it was booked to another judge. She faced all such attacks with dignity, firmness and good humour, knowing that her enemies were hoping for an over-reaction or other mistake with which they could berate both her and all of her sex as judges.

She was by no means unduly lenient with accused members of her own sex. She spoke bluntly about the difficulty in obtaining convictions against female law-breakers, noting that often "the woman’s part is that of complicity. She instigates the crime, receives the goods after the man has stolen them, procures the girl for his immoral purposes, or carries the noxious drugs which he disposes of. It was probably an observer of this combination who gave expression to the odious dictum ‘cherchez la femme’." In time, she became a good judge.

Another problem she met in the courts, narcotic drug trafficking, affected her deeply. Her studies on the subject, which indicated that Canada on a per capita basis led the world in 1919 in narcotic drug trafficking, became a series of articles in Maclean’s magazine, subsequently published together in 1922 as The Black Candle. It became a text book in the Narcotics Division of the League of Nations.

Her best known crusade was establishing that women were persons for the purpose of appointments to the Senate. The British North America Act provided that "Properly qualified persons may from time to time be summoned to the Senate." On what constituted qualification, it said only that a senator must "be a British citizen, at least thirty years of age, and possess four thousand dollars in real property." As absurd as it now seems, she and her supporters were obliged to do battle off and on for twelve full years before triumphing. The first skirmish occurred in 1917 when she allowed some Alberta women to put her name forward as a candidate for the Senate to Prime Minister Robert Borden. Borden rejected both her name and those of other women on the basis that under Canadian law women were simply not "persons." In 1921, his successor as prime minister, Arthur Meighen, rejected a request by the Montreal Women’s Club to appoint Emily to the Senate, saying that government lawyers said that it was impossible to nominate a woman. In 1922, she herself wrote to the new prime minister, Mackenzie King, asking for an appointment. King did nothing but declare his good intentions about a possible amendment to the BNA Act during his second period as prime minister between 1926 and 1930.

In 1927, one of Emily’s lawyer brothers, Bill, noticed that a provision of the Supreme Court of Canada Act then gave to any five interested persons the right to petition the federal government to seek a ruling from the Supreme Court of Canada on a constitutional issue. The four others she recruited were Nellie McClung (a school teacher, homemaker, MLA for five years until defeated for her pro-prohibition stand in 1926, author, and comrade-in-arms with Emily on issues until her move to Calgary), Louise McKinney (the first female MLA in the Commonwealth and a crusader against alcohol and tobacco), Henrietta Edwards (a social reformer and author of two books on the legal status of women), and Irene Parlby (a former president of the United Farm Women of Alberta, MLA and Minister without portfolio in Alberta for fourteen years).

"The Alberta Five," as they came to be known, signed the petition which would soon be known throughout Canada, in the Murphy home in the late summer of 1927. "Does," it asked simply, "the word persons in section 24 of the BNA Act of 1867 (re senate appointments) include female persons?" The Justice Department in Ottawa quickly accepted the petition and agreed to pay the legal costs of an action in the Supreme Court of Canada of whichever lawyer the five might choose. The highest Canadian court heard their case in the spring of 1928 and woodenly decided that they were obliged to interpret the BNA Act in light of the legal conditions applicable when it was first passed in Britain in 1867. It was then an easy step for the five Canadian judges to hold unanimously that it was not intended for women to sit in the Senate. It was not in Emily’s nature to accept defeat; she soon resolved to carry the case through the only stage left: an appeal to the Privy Council in imperial London. It was largely because of her efforts, as her biographer indicates, that the "person case" did not expire at this point. The outcome of the final appeal was hard to predict. The Attorney-General of Alberta supported their position, but counsel for the governments of both Canada and Quebec argued that the earlier decision should be upheld.

The Canadian Press reporter, Lukin Johnson, wired a pithy eyewitness account of the polite legal fight underway at number one, Downing Street: "...five great judges, with the Lord Chancellor of England at their head, and a battery of bewigged lawyers from Canada and from England, are wrestling with a question, propounded on behalf of their sex, by five Alberta women.... Deep and intricate questions of constitutional law are debated back and forth. The exact shade of meaning to be placed on certain words is argued to the finest point. And so it goes on, and probably will continue to go on for several days. At the end of all these endless speeches, lessons on Canadian history, and questions by five great judges of England, will be decided, if one may hazard a guess, that women undoubtedly are Persons. Which one may say, without exaggeration, most of us know already!"

Three months later, on October 18, 1929, the Lord Chancellor, Lord Sankey, strode back to the Court to deliver the patently obvious and unanimous decision: women are Persons and are thus able to become Canadian senators. Significant history had been made. Congratulations came to Edmonton from around the province and country. Nellie McClung issued a statement giving the full credit for the victory to Emily, who in turn tactfully declared that in future Canadian women could say "we’ instead of ‘you’ in affairs of State."

A public campaign quickly began for the leader of the five to become the first woman senator, but it was not to be. Prime Minister Mackenzie King appointed Cairine Wilson from Ottawa in 1930. The Alberta Five received a bronze plaque in their joint honour in the Senate which was donated in 1938 by the Federation of Business and Professional Women’s Clubs. In addition, since 1979 five awards have been made annually to Canadians who have fought for sexual equality. In fairness to Mackenzie King, it would appear that there was no Alberta vacancy in the Senate in 1929-30 before he lost the general election. There was no excuse whatsoever for his successor as prime minister, R.B. Bennett, also an Albertan, for not supporting Emily (who doubtless wanted the appointment) because an Edmonton vacancy did occur in 1931. It was simply sophistry of the basest kind for Bennett to refuse her on the basis that the new senator must be a Roman Catholic. Years later, an Edmonton senator probably provided the real reason in quipping: "Oh, we never could have had Mrs. Murphy in the Senate. She would have caused too much trouble."

In late 1931, Emily, aged 63 years, retired as a judge, confiding to a friend that she had promised her family that she would retire after fifteen years of service. Policemen, bailiffs, librarians, clerks, reporters, lawyers -- all were sorry to see her go. Perhaps sensing that her health was going, she wrote a farewell letter to her family in late 1932 and placed it in her safety deposit box. Twelve months later, when she dropped in to visit a court, she had the quiet satisfaction of hearing Eardley Jackson, her enemy from her first day on the bench, spontaneously salute "the kindly smiling countenance of this beloved lady." That night, October 26, 1933, she died in her sleep. As she had said long ago when her daughter Doris died, "life is lent and not given." Her friend, Nellie McClung, among countless mourners around the world spoke of her "burning love of justice, a passionate desire to protect the weak, and to bring to naught the designs of evil persons."