The
‘Persons Case’ is commemorated in statues on Parliament Hill and around the
country. The story is that women were not legally considered ‘persons’ in
Canadian law until the Famous Five brought the question to the Supreme Court of
Canada and then appealed to the British Privy Council in 1929, who for the
first time declared that “women are persons.” A popular summary:
In the 1920s five Alberta women fought a
legal and political battle to have women recognized as persons under the British
North America Act. The landmark decision by the British Privy Council, the
highest level for legal appeals in Canada at the time, was a milestone victory
for the rights of women in Canada.
A ruling in British common law in 1876
emphasized the problem for Canadian women by saying “Women are persons in
matters of pains and penalties, but are not persons in matters of rights and
privileges.”
I’ve
always been suspicious of this story. I used to walk by a monument to the
Famous Five every day on my way home from work. And something about the story
always rubbed me the wrong way. Whenever I glanced at it and saw ‘women are
persons’ I thought to myself — “this has got to be wrong.” Two reasons.
I
know, as a matter of general acquaintance with history, that from ancient time
killing a woman was the crime of murder. It
wasn’t the equivalent of damage to property or of killing a slave (unless the
woman was in fact a slave), it was murder. This is true in the Old Testament,
it’s true in Roman law, in ancient Germanic and Anglo-Saxon law. The penalty
for killing a free woman was the same as for a free man under ancient Frankish
law. In English common law as well. That makes a pretty strong case, even
before any investigation, that women have always
been considered ‘persons’ under English law. Also, women could bring lawsuits,
could marry and could refuse marriage. Women could own property: the common claim to the
contrary relies on the fact that a wife’s property belonged to her husband. But
this was not because women could not own property, but because the common law
held that husband and wife were legally one person. It only applied to married
women—an unmarried adult woman could own property.
And
maybe the strongest counterexample, a woman could be queen, and in fact was queen for nearly the entire
nineteenth century when women were supposed to be ‘not persons.’ All this makes
it hard to take seriously the claim that women were not considered ‘persons’
until 1929.
The
second reason I was suspicious is that I know in law words are often used in
technical ways which can be counter-intuitive or bizarre. Consider the
definition of ‘person’ in the Canadian
Law Dictionary:
Person. In law, an individual or corporated group
having certain legal rights and responsibilities. This has been held to include
foreign and domestic corporations.
Words
can also be restricted or specified in their application in a particular legal
text. All this gives ample material for misunderstanding and distortion as soon
as a legal matter is communicated to laypeople (non-lawyers). You can see in
how people talk about corporations as legal persons, you can see it in a
similarly technical matter like science where popular reporting makes a
complete shambles of it, e.g. the guy who hears about Einstein’s theory of
relativity and thinks it means “everything is relative, man.”
At
bottom what I expected of the standard narrative of the ‘Persons Case’ was that
1) it depended on ignoring all the evidence that women already were considered
‘persons’ under the law and 2) it took whatever was actually going on in the
Supreme Court out of its context and misunderstood it utterly. But I could not
know for sure without actually going and checking. Fortunately it is fairly
easy to get one’s hands on the legal materials of this history. I read every
word of four court relevant court judgments:
Chorlton v. Lings
(1868, England, Court of Common Pleas)
De Souza v. Cobden
(1891, England, Queen’s Bench)
Reference as to the meaning of the word ‘Persons’ in section
24 of the British North America Act, 1867
(1928, Supreme Court of Canada)
Edwards v. Attorney-General of Canada (1929, Privy Council)
(I
also looked into a few other historical sources but the court judgments are the
focus.)
Supreme Court of Canada,
1928
This
is the basic plot:
In
1927 five women (Henrietta
Muir Edwards, Nellie McClung, Louise McKinney, Emily Murphy and Irene Parlby) got together and submitted a petition to the federal parliament
requesting that a question concerning women’s admission to the Senate be
submitted to the Supreme Court for a response. (They knew of a legal privilege
that any five persons could submit such a petition, i.e. this is another piece
of evidence that women were already considered ‘persons.’) The request was
granted and their question submitted by the Minister of Justice to the Supreme
Court of Canada.
The
question was: “Does
the word ‘Persons’ in section 24 of the British North America Act, 1867,
include female persons?”
In 1928 the Supreme Court answered the question
in the negative, i.e. women are not eligible for appointment to the Senate.
Prime Minister Mackenzie King (according to newspaper reports of the time)
vowed to amend the constitution to allow women’s appointment. But the five
women instead appealed to the Privy Council of England (the highest court of
the British Empire) and in 1929 the Lords of the Privy Council answered the
question in the affirmative.
The first thing to note is that the whole
business is concerned with women’s eligibility for the Senate. That is what the
courts are considering. It’s true the question asked is whether women are
included under the word ‘persons’ in section 24 of the BNA. Here are sections
23 and 24:
23. The Qualification of a Senator shall
be as follows:
(2) He shall be of the full age of Thirty
Years;
(2) He shall be either a Natural-born
Subject of the Queen, or a Subject of the Queen naturalized by an Act of the
Parliament of Great Britain, or of the Parliament of the United Kingdom of
Great Britain and Ireland, or of the Legislature of One of the Provinces of
Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the
Union, or of the Parliament of Canada after the Union;
(3) He shall be legally or equitably
seised as of Freehold for his own Use and Benefit of Lands or Tenements held in
free and common Socage, or seised or possessed for his own Use and Benefit of
Lands or Tenements held in Francalleu or in Roture, within the Province for
which he is appointed, of the value of Four thousand Dollars, over and above
all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out
of or charged on or affecting the same;
(4) His Real and Personal Property shall
be together worth Four Thousand Dollars over and above his Debts and
Liabilities;
(5) He shall be resident in the Province
for which he is appointed;
(6) In the case of Quebec he shall have
his Real Property Qualification in the Electoral Division for which he is
appointed, or shall be resident in that Division.
24.
The Governor General shall from Time to Time, in the Queen’s Name, by
Instrument under the Great Seal of Canada, summon qualified Persons to the
Senate; and, subject to the Provisions of this Act, every Person so summoned
shall become and be a Member of the Senate and a Senator.
So, in answering the question the courts have to
construe the word ‘persons’ or more precisely ‘qualified persons’ in section
24. But they are decidedly not
answering the question whether women are persons in the abstract or in general.
The Chief Justice of the Supreme Court explicitly points this out: “There can
be no doubt that the word ‘persons’ when standing alone prima facie includes women. It connotes human beings—the criminal
and the insane equally with the good and the wise citizen, the minor as well as
the adult.” Here is how he explains what question the Supreme Court is doing:
It should be observed that, while the
question now submitted by His Excellency to the court deals with the word
“Persons,” section 24 of the B.N.A. Act speaks only of “qualified Persons”; and
the other sections empowering the Governor General to make appointments to the
Senate (26 and 32) speak, respectively, of “qualified Persons” and of “fit and
qualified Persons.” The question which
we have to consider, therefore, is whether “female persons” are qualified to be
summoned to the Senate by the Governor General; or, in other words—Are women
eligible for appointment to the Senate of Canada? That question it is the
duty of the court to “answer” and to “certify to the Governor in Council for
his information its opinion with the reasons for such answer.”
They take the question to be ‘are women eligible
for appointment to the Senate.’ And the way the Chief Justice and the majority
of the Court arrive at an answer is this: they consider the original intent of
the legislators.
In deciding the question before us we have
to construe not merely the words of the Act of Parliament but the intent of the
Legislature as collected, from the cause and necessity of the Act being made,
from a comparison of its several parts and from foreign (meaning extraneous)
circumstances so far as they can be justly considered to throw light upon the
subject.
Passed in the year 1867, the various
provisions of the B.N.A. Act bear to-day the same construction which the
courts would, if then required to pass upon them, have given to them when they
were first enacted. If the phrase “qualified persons” in s. 24 includes women
to-day, it has so included them since 1867.
In considering this matter we are, of
course, in no wise concerned with the desirability or the undesirability of the
presence of women in the Senate, nor with any political aspect of the question
submitted. Our whole duty is to construe, to the best of our ability, the relevant
provisions of the B.N.A. Act, 1867, and upon that construction to base our
answer.
We know how the Supreme Court answered:
“Understood to mean ‘Are women eligible for appointment to the Senate of
Canada,’ the question is answered in the negative.” On what basis did they give
that answer? On two bases:
1)
The
common law ineligibility of women for public office.
2)
The
impossibility that, if the framers intended to depart from this tradition re:
the Senate, they would do it in such a furtive and ambiguous way. If they
intended to include women as eligible for the Senate they would have done so
more explicitly because of what a radical constitutional change this would be.
I think the second point is straightforward,
assuming the first point and the requirement to decide based on original
intent. On the first point the Chief Justice says: “By the common law of
England (as also, speaking generally, by the civil and the canon law: foeminae
ab omnibus officiis civilibus vel publicis remotae sunt) women were under a
legal incapacity to hold public office.” He also cites a number of precedential
cases including two which I will discuss below. For now let’s take this as
read. The point of this is not that it is still universally valid, it was not:
in 1928 women did hold public
office—Emily Murphy was a police court magistrate, one of the other five women
was a Member of the Alberta Parliament, and there was a woman MP in the federal
parliament. The point is that, given this tradition, and the fact that it had not been changed in 1867 when sec. 24
was written, the framers must have written sec. 24 with that tradition in mind,
i.e. they would not have intended ‘qualified persons’ to include women.
In sum the Supreme Court of Canada said that
women are ineligible for appointment to the Senate, because it was not the
intent of the framers to include women when they wrote that the Governor
General could summon ‘qualified Persons’ to the Senate.
Privy Council Appeal, 1929
The women appealed this to the Privy Council. As
a brief aside I find this rather odd, because it was not a normal court case.
It had not been brought through the court system—normally for a case to reach
the Supreme Court would require an appeal or series of appeals from a lower
court—it was a question submitted by the Minister of Justice for reference
directly to the Supreme Court. And also, if I understand right, the Court’s
answer was of advisory force—of
course it would be of great weight but it was not strictly legally binding. So
it seems odd to me that this could be appealed at all. In any case the Privy
Council accepted the appeal. Like the Supreme Court, they take the question as,
‘are women eligible for appointment to the Senate.’
Their Lordships are concerned with the
interpretation of an Imperial Act, but an Imperial Act which creates a
constitution for a new country. Nor are their Lordships deciding any question
as to the rights of women but only a question as to their eligibility for a
particular position. No one either male or female has a right to be summoned to
the Senate. The real point at issue is whether the Governor-General has a right
to summon women to the Senate.
We know they come to a different answer. “Their
Lordships are of opinion that the word ‘persons’ in sec. 24 does include
women, and that women are eligible to be summoned to and become members of the
Senate of Canada.” How do they arrive at this different judgment? They cease to confine themselves to judging
according to original intent. This is important to recognize. The Privy
Council are not in disagreement with the Supreme Court that in 1867 women were
ineligible for public office under the common law.
In England no woman under the degree of a
Queen or a Regent, married or unmarried, could take part in the government of
the state. A woman was under a legal incapacity to be elected to serve in
Parliament and even if a peeress in her own right she was not, nor is, entitled
as an incident of peerage to receive a writ of summons to the House of Lords.
(It’s true they disapprove of this tradition:
“The exclusion of women from all public offices is a relic of days more
barbarous than ours;” but they nevertheless recognize its importance for the
interpretation of old laws.) They agree
with the Supreme Court that the framers of the constitution probably did not
intend that sec. 24 should embrace women as eligible for the Senate. But they
consider that they are not bound to
decide the question based on original intent, but on the meaning of the words
used. And since there is no express provision excluding females, and it was
customary to understand masculine pronouns (the ‘he’ etc. in sec. 23) as
potentially including females, they answer that women are eligible for
appointment to the Senate.
There are two points I’d like to stress about
these judgments.
1)
The
difference that results in a ‘no’ in one and a ‘yes’ in the other is a difference of legal reasoning. Their
difference is over whether to interpret the constitution according to the
original intent of the framers (and the Privy Council grant that the Court’s
reading of that intention is correct
as a matter of fact); or else according to what the words can be interpreted
now to mean. This is not a new disagreement among lawyers; it was well known in
the twelfth century at the very founding of the Western tradition of
jurisprudence. And in itself the fact that the two bodies disagreed about this
is of no significance for the feminist cause: in this case it went in their
favour, but in another case it would not.
2)
In
neither case is it based on a differing judgment about whether ‘women are
persons.’ The Supreme Court did not found its exclusion on that ground, and
neither did the Privy Council read it that way. Women were not excluded from
the Senate because they were not ‘persons.’ They were excluded because women
were ineligible for public office. Now, whether one considers that exclusion
just or unjust, good or bad, it is not
the same thing as saying women are not persons. It is simply a different
matter, and must be considered on its own terms.
So in conclusion we have a Privy Council
statement (of advisory force) deciding, in substance, that women are eligible
for appointment to the Senate; and turning on a lawyerly dispute over how to
interpret statutes and constitutional documents. This is what really happened
in the ‘Persons Case’ in 1929. And my conclusion from reading the documents
agrees with how the Canadian Law
Dictionary summarizes it:
Persons
Case. In the case of
Henrietta Muir Edwards et al v. Attorney General for Canada (the “Persons
Case”) the Judicial Committee of the Privy Council held that women were
“persons” as designated in s. 24 of the Constitution Act 1867 [B.N.A. Act] and
could therefore be summoned to and become members of the Senate of Canada.
It is easy to see how this could immediately be
misunderstood or misreported. Take it outside the legal context and start
telling people who aren’t lawyers that ‘women are persons as designated in s.
24’ the last words drop out of mind instantly and all they hear is ‘women are
persons!’ I can see this happening when I read the newspaper reports: there is
endless confusion of the issue, so that even where people start with
eligibility to the Senate they simply cannot keep that in mind, and are
presently talking about ‘women not being persons’ etc. And at the same time
some people make a joke of it because they see how silly it is to think that
the courts have decided for the first time that women are persons.
There is reason to suspect that the organized
feminists (the original five women but many others too) deliberately played up
this ambiguity. In fact it is not unlikely that they submitted this question
specifically because its phrasing
would allow them to make the case out as ‘are women persons.’ I don’t have
enough evidence to make a positive statement about their intention—but it
certainly worked to their advantage then and it very much works to the advantage of feminists now. What a boost for
feminism, to be able to claim that women weren’t persons until the famous five
came along!
Pains and penalties but
not rights and privileges?
Thus far for the ‘Persons Case’ of 1929. But what
about that quotation, “Women are persons in matters of pains and penalties, but
are not persons in matters of rights and privileges?” That is rather damning
and would seem to make everything I’ve said into straw. Well, let’s see.
That line is a cited on several web articles re:
the Persons Case, including one from Library and Archives Canada. What is its
source? It is a quotation from Nellie McClung’s autobiography, The Stream Runs Fast: My Own Story (1945).
I checked the book out of the library and I hold it in my hand. Here is the
full quotation:
If
we follow up her reference to the common law what do we find? The short answer:
everything she says here is wrong. It is not Charlton v. Ling it is Chorlton
v. Lings, and it is not 1876 but 1868. Here is the summary of the case:
APPEAL from the Revising Barrister for the
borough of Manchester.
Mary Abbott claimed to be put upon the
list of voters for the township of Manchester in the following manner:–
“Abbott, Mary – 51, Edward Street — House – 51, Edward Street.”
It was admitted that Abbott was a woman,
of the age of twenty-one years, and unmarried, and that she had for twelve
months previously to the last day of July, 1868, occupied the dwelling house
stated in the claim within the township, and had in all respects complied with
the requirements of the Registration Acts.
On behalf of the claimant it was contended
that under the existing statutes the claimant was duly qualified and entitled
to be registered as a voter, and when registered to vote in the election of a
member of parliament, and that women for the purpose of being registered
electors, and voting in election for members of parliament, are not subject to
any legal incapacity.
It was maintained, on the part of the
objector, that, under the existing statutes, the claimant was disqualified on
account of her sex.
The revising barrister held that Mary
Abbott, being a woman, was not entitled to be placed on the register. Appeals
of 5346 other women were consolidated.
The question for the Court was whether
Abbott was or was not entitled to have her name inserted in the list of voters
for the borough of Manchester.
This
is a very well-known case, part of the so-called ‘Registration Cases’ following
the Representation of the People Act,
1867. A woman (actually 5346 women) put her name on the list of voters for
the township of Manchester, and in the review of the voters list the revising
barrister objected and struck out her name because she was a woman. The claim
“she was arrested for this misdemeanor and tried” is simply made up. It is
without foundation. And I read every word of the judgment and the line ‘pains
and penalties but not rights and privileges’ is not there. Here is the import
of the court decision:
The Representation of the People Act,
1867, s. 3, enacts that every “man” shall, in and after the year 1868, be
entitled to be registered as a voter, and when registered to vote for a member
or members to serve in parliament for a borough who is qualified as follows,
first, is of full age, and not subject to any legal incapacity.
By Lord Brougham's Act, s. 4, in all Acts
words importing the masculine gender shall be deemed and taken to include
females, unless the contrary is expressly provided:—
Held, that women are subject to a legal
incapacity from voting at the election of members of parliament.
Held, also, that the word “man” in the
Representation of the People Act does not include women.
Once
again this case turns upon the common law ineligibility of women to hold public
office and vote in elections. Judge Willes’s comments on this are very
interesting:
Women are under a legal incapacity to vote
at elections. What was the cause of it, it is not necessary to go into: but,
admitting that fickleness of judgment and liability to influence have sometimes
been suggested as the ground of exclusion, I must protest against its being
supposed to arise in this country from any underrating of the sex either in
point of intellect or worth. That would be quite inconsistent with one of the
glories of our civilization, – the respect and honour in which women are held.
This is not a mere fancy of my own, but will be found in Selden, de Synedriis Veterum Ebræorum, in the
discussion of the origin of the exclusion of women from judicial and like
public functions, where the author gives preference to this reason, that the exemption was founded upon motives of
decorum, and was a privilege of the sex (honestatis privilegium).
The
nearest one comes to a foundation for ‘pains and penalties but not rights and
privileges’ is a different case, De Souza
v. Cobden of 1891.
By s. 41 of the Municipal Corporations
Act, 1882, it is provided that, if any person acts in a corporate office
without having made the declaration by this Act required, or without being
qualified at the time of making the declaration, or after ceasing to be
qualified, or after becoming disqualified, he shall for each offence be liable
to a fine not exceeding 50l., recoverable by action. Sect. 73 of the same Act
provides, that every municipal election not called in question within twelve
months after the election, either by election petition or by information in the
nature of a quo warranto, shall be deemed to have been to all intents a good
and valid election.
The above provisions are incorporated by
the Local Government Act, 1888, in reference to county councils.
The defendant, a woman, having been
elected a member of a county council, twelve months elapsed without any
proceedings taken to question the validity of her election. After the
expiration of the twelve months, she acted on several occasions as a member of
the council:—
Held, affirming the decision of Day, J.,
that the defendant was liable to the penalties imposed by s. 41 for acting when
disqualified.
Query, whether s. 73 applies to the
election of a person whose status is one of absolute incapacity for election,
as in the case of a woman.
The
counsel for the woman in this case made the ingenious argument:
If a woman is so absolutely disqualified
that her election is a nullity, and even after the twelve months it cannot be
deemed valid, then it is contended that she cannot be said to act in a
corporate office within the meaning of s. 41. If it be impossible that s. 73
should apply to the case of a woman elected, then by parity of reasoning s. 41
cannot apply to a woman.
I.e. if her election is not valid then she should
not be fined for for ‘acting in a corporate office without being qualified.’
The court disagreed and imposed the fine of fifty pounds.
Here again the issue was never whether women are
persons. Of course women are persons. The law applies to them in pains and
penalties and rights and privileges
(e.g. a woman could appoint an attorney). The point is that women are
ineligible for public office. From that specific
privilege women are excluded.
The
point to get clear is that, injustice or not, this is a different matter from whether women are persons, and does not depend on saying women are not
persons. And by the time of the Supreme Court judgment in 1928 this was only a historical principle. It was relevant
for the interpretation of old statutes but was no longer a living rule. It had been settled that
women were eligible for public office by the granting of the vote in 1918 and
of eligibility for seats in provincial and federal parliaments in 1920. As a
general principle, Canadian society had already accepted the eligibility of
women for public office.
What was the ‘Persons Case’
really about?
Whether
McClung mendaciously falsified history or was just sloppy, I don’t know, but
everything she said about this is wrong. And yet she is commonly quoted on this
and her account of the Persons Case is followed without criticism. Why? I
should think partly laziness (it is easier to just read McClung and paraphrase
than to read dozens of pages of court judgments), but laziness supported by the
motive that McClung’s version of the story puts the feminist victory in the
absolute best possible light.
Apart
from McClung there is little ground for saying ‘women were not persons’ at all.
And if the victory was just about saying women are eligible for the Senate it
is of rather flimsy importance. Women could vote in Canada since 1918 and could
be members of federal parliament since 1920. Compared to these the Senate is a
kind of mopping-up job. And it would be a bit ironic to trumpet women’s
admission to the Senate as such a great thing since, then and now (it comes up
in the 1929 newspapers) people were complaining about the Senate as an
iniquitous institution, suggesting its abolition, etc. The ‘good’ of getting
women into the Senate then depends on the principle under so many feminist
causes, ‘two wrongs make a right.’ The Senate is a bad thing, but rather than
abolish it we must get women into it.
Hence
the reliance on ‘personhood’ as the crux of the story. This has worked out very
well for Nellie McClung and the other four women, who get to have their statues
on Parliament Hill. And it gives quite a gift to feminism since they can claim
this great victory to their credit. In fact it is in pretty much everybody’s
interest to go on telling the story this way: we all get to tweak our self
esteem on how much more enlightened we are than our barbarous ancestors who
didn’t even think women were persons. It’s a cause we can all get behind and
feel good about ourselves for. Once get the story out, and it is guaranteed
never to be corrected.
The
Persons Case was about women in the Senate. It was not about whether women are
‘persons’ at all. Women were already considered persons under Canadian and
common law and as far as I know there was never any controversy about this. Let
us not fall into the common trap of saying that so long as women were excluded
from the Senate they were not really persons ‘in the fullest sense.’ This is
just a rhetorical trick. If
ineligibility for the Senate means one is not a ‘person,’ then anyone under
thirty years old or possessing less than $4000 is not a ‘person’ under Canadian
law of 2015. Which is absurd. Legal regimes can make all kinds of distinctions
between people and their eligibility for offices without questioning whether
they are people.
The Famous Five and the media exaggerated the
meaning of the case to imply that women were not persons under the law before
and became persons as a result of it. In fact the only issue in the Persons
Case was whether women could be appointed to the Senate.
