How to love the sinner, hate the sin?

One does not help by assisting another in sin, when he should rather hinder and oppose him.

–St Augustine

Faithful are the wounds of a friend; but the kisses of an enemy are deceitful.

–Proverbs 27

Justice Duff: the right opinion misunderstood for 87 years?

The famous Sir Lyman Poore Duff, later Chief Justice of the Supreme Court of Canada, was one of the members present when the Supreme Court decided on the Persons Case of 1928. Justice Duff wrote his own opinion and did not join with either of the two majority opinions. His opinion is very interesting and — in my view — was immediately misunderstood. The misunderstanding had the result that the 1928 Persons Case judgment has been characterized as ‘unanimous’ down to today.

I freely admit that this claim is, on the face of it, far fetched. It strains probability to propose that Justice Duff was misunderstood by all his immediate colleagues, jurists who knew him and were at home with legal reasoning, and that I (who lack any legal training) have understood him better 87 years later. Let me at once qualify it and say that I don’t doubt that his colleagues on the court understood him at the time. But I know how to read, and the summaries of Duff’s opinion simply don’t do justice to what he said in that opinion. Here is how it was summarized in the Supreme Court’s report:

Per Duff J.—It seems to be a legitimate inference that the B.N.A. Act, in enacting the sections relating to the “Senate,” contemplated a second Chamber, the constitution of which should, in all respects, be fixed and determined by the Act itself, a constitution which was to be in principle the same, though, necessarily, in detail, not identical, with that of the Legislative Councils established by the earlier statutes of 1791 and 1840; and, under those statutes, it is hardly susceptible of dispute that women were not eligible for appointment.

And here is the Privy Council’s 1929 summary:

Mr. Justice Duff ... came to the conclusion that women are not eligible for appointment to the Senate upon the narrower ground that upon a close examination of the British North America Act of 1867 the word “persons” in sec. 24 is restricted to members of the male sex. The result therefore of the decision was that the Supreme Court was unanimously of opinion that the word “persons” did not include female persons, and that women are not eligible to be summoned to the Senate.

Isn’t it interesting that these two summaries say different things? They both say that Duff thought the BNA Act excluded women from eligibility for the Senate. But they give different grounds for the exclusion: in 1928 they say it is because the Senate was constituted on the same lines as the earlier Legislative Councils; in 1928 they say simply that sec. 24 confines ‘persons’ to the male sex. Perhaps a hint that this is a difficult opinion.

And indeed it is a difficult opinion. It shows nuanced, careful thought, and the structure requires patience. In fact it is not easy to summarize. Justice Duff first considers the different arguments and issues at hand in the case, and lays out several different possible interpretations of the BNA Act. This is a very interesting section:

In order to test the contention ... that women are excluded from participating in working the Senate or any of the other institutions set up by the Act, one is bound to consider the Act as a whole, in its bearing on this subject of the exclusion of women from public office and place. Obviously, there are three general lines or policy which the authors of the statute might have pursued in relation to that subject.

First, they might by a constitutional rule embodied in the statute, have perpetuated the legal rule affecting women with a personal incapacity for undertaking public duties, thus placing this subject among the limited number of subjects that are withdrawn from the authority of Parliament and the legislatures.

Second, they might, by a constitutional rule, in the opposite sense, embodied in the Act, have made women eligible for all public places or offices, or any of them, and thus, or to that extent, also, have withdrawn the subject from the legislative jurisdiction created by the act.

They might, on the other hand, with respect to all public employments, or with respect to one or more of them, have recognized the existence of the legal incapacity, but left it to Parliament and the legislatures to remove that incapacity, or to perpetuate it as they might see fit. For example, they might have restricted the Governor in Council, in summoning persons to the Senate under section 24, by requiring him to address his summons to persons only who are under no such legal incapacity, which would have made women ineligible, but only so long as such incapacity remained, and at the same time have left it within the power of the Parliament to obliterate the cause of the disability. The generality of the word “persons” in section 24 is, in point of law, susceptible of any qualification necessary to bring it into harmony with any of those three possible modes of treating the subject.

He then states that he is “unable to accept the argument [of the Chief Justice] in support of the limited construction, in so far as it rests upon ... a general presumption against the eligibility of women for public office.” He does not accept it because he thinks it self-evident that Parliament has the authority to deal with the incapacity of women for public office by means of legislation. For example in the case of the House of Commons, although women were ineligible in 1867, Parliament has since that time enacted that women can become Members of Parliament, and no claim has been pressed that in doing this Parliament overstepped its authority. No one is prepared to argue that the Constitution established a restrictive principle denying women eligibility for public office, which could only be modified by amending the Constitution — in fact, this eligibility can be modified by normal legislative authority.

Nevertheless he gives two special reasons favouring the restriction of ‘persons’ in sec. 24 to males. These are the reasons cited in the summaries above. The Senate was evidently established along the lines of the older Legislative Councils, for which women were not eligible for appointment. And moreover, the language of section 23 (subsec. 3) “points to the exclusion of married women [because a married woman could not own property in her own name] ... and the provisions dealing with the Senate are not easily susceptible of a construction proceeding upon a distinction between married and unmarried women in respect of eligibility.” It is on these grounds that Justice Duff contends sec. 24 restricts eligibility to males.

However. There is a big however. Justice Duff concludes by moderating the weight and force of the Supreme Court’s opinion on this question. According to the BNA Act:

The Senate possesses sole and exclusive jurisdiction to pass upon the claims of any person to sit and vote as a member thereof, except in so far as that jurisdiction is affected by statute. That, I think, is clearly the result of sec. 33, combined with the Imperial Act of 1875, and the subsequent Canadian legislation. And the jurisdiction of the Senate ... extends, I think, also to the question whether a person summoned is a person capable of being summoned under sec. 24. In other words, ... if the Governor General were professing, under that section, to summon a woman to the Senate, the question whether the instrument was a valid instrument would fall within the scope of that jurisdiction.

I do not think it can be assumed that the Senate, by assenting to the Statute, authorizing the submission of questions to this Court for advisory opinions, can be deemed thereby to have consented to any curtailment of its exclusive jurisdiction in respect of such questions. And therefore I have had some doubt whether such a question as that now submitted falls within the Statute by which we are governed. It is true that an affirmative answer to the question might give rise to a conflict between our opinion and a decision of the Senate in exercise of its jurisdiction; but strictly that is a matter affecting the advisability of submitting such questions, and therefore within the province of the Governor in Council. ... We are asked for advice on the general question, and that, I think, we are bound to give. It has, of course, only the force of an advisory opinion.

If I am understanding him right, all this seems to say that it is really up to the Senate itself to settle any question of eligibility if and when a doubtful case should arise. The Justices have been asked for their opinion, and so he is bound to give it — and his own opinion is that the BNA Act restricts eligibility to men. But this is only an advisory opinion. The real test, and this is the only real legal test, would be for the Governor General to actually appoint a woman to the Senate. At that point, if her eligibility were questioned, it would be for the Senate to decide. “We must,” says Duff, “assume that the Senate would decide in accordance with the law.”

I happen to think Justice Duff’s opinion was the right one. My own judgment ought to have very little weight, of course, since I am not trained as a lawyer and have no acquaintance with constitutional questions. But his criticism of the majority opinion seems sound — the Constitution did not establish an explicit principle excluding women from public office, and therefore it does seem that this principle is subject to the modification of the legislature, and is not sufficient ground for a restrictive interpretation of sec. 24. Consider: let us say the Famous Five never appealed the 1928 decision to the Privy Council (or the Privy Council refused to hear it). Let us then say that Mackenzie King followed through on his promise to amend the BNA Act to permit women’s appointment to the Senate.

How would that amendment have been made? As a matter of text, I mean. Section 24 already reads ‘qualified persons.’ It does not say ‘males.’ The language already potentially includes females — it is impossible to improve upon its ambiguity. If the restriction to males rests upon the general ineligibility of women for public office, and that ineligibility has ceased to operate, then the language of sec. 24 is already prepared to include women.

On the other hand the Privy Council judgment does not do justice to the undoubted truth, that it was not the intention of the legislators in 1867 to include women as eligible for the Senate, and this intention is manifested in the text in sec. 23 subsection 3. The Privy Council also seem innocently unaware that they have been asked for an advisory opinion and nothing more.

Against all these, Justice Duff appears admirably careful and attentive to the text before him. If Duff’s opinion had carried the day then the matter for amendment would have been crystal clear: the problem would not be sec. 24, which is not exclusive of sex, but sec. 23 where the property requirement would exclude married women — but even here, by the Married Women’s Property Act, the legislature had changed the law such that married women could potentially meet the qualifications. 

And I like Duff’s opinion also for his admirable judicial self-restraint. He is not eager to pronounce his own view on the subject, but gives it unwillingly, or rather by compelled will — coactus volui as the Romans would say — and for the benefit of the interested parties he explicitly discounts the force of that opinion. He reminds the world that the question is not, finally, for the Supreme Court to decide, but for the Senate, and the only thing to do is wait until the Governor General appoints a woman. 

Again, if Duff had carried the day, the large-scale misunderstanding of the Persons Case would not have had as smooth a road. Because he made the advisory nature of the judgment more explicit, it would have been less possible to construe it as a great and significant legal victory. 

Postscript on practical historical research, and a note on the use of Wikipedia

It seems a worthy occasion, after yesterday’s post and all the research that prepared it, to offer some advice on practical historical research.

By practical I mean aimed at answering a particular question, primarily for the benefit of the researcher. This is a different business from a scholar’s research which aims to produce a peer-reviewed publication or some other contribution to academic literature. I also say ‘practical’ because my advice is meant to help the person whose career is in a field other than historical research and whose time for it is very limited.

Let’s say you are curious about some particular historical event. I’ll take the Persons Case as my illustrative example.

You want to know what really happened, and if the account you’ve heard of it is true. How to find out?

The first thing to say is, You cannot do this by reading modern articles. You just can’t.

Let us say you Google the Persons Case and read six different articles that come up. You will find differences between the articles and how they interpret the case. How do you evaluate which articles are giving you the more truthful account?

You can’t. You have no reliable grounds on which to decide. This problem is peculiarly acute when discussing history, because its subject is the past, which is inaccessible to us. Other sciences—philosophy, ethics, physics, psychology, biology—deal with what is still present today and therefore we have experience with it independent of whatever author we happen to be reading. We have our own contact with the subject and so we can criticize what we read based on how it makes sense of or conflicts with our own experience.

History is not like that. The past is gone. The only past to which we have independent access is our own life. For everything else, we need someone’s testimony or we need surviving evidence. Common sense, moral conviction, philosophy, none of these can tell you what happened—the only way to find out is to go and look at the evidence.

To be sure, there is a place for common sense and probabilistic reasoning in the evaluation of historical claims, but these have to come after one knows what the evidence is.

Go to the sources

Never be satisfied with secondhand information when firsthand is available.

The only thing to do is to go back to the sources. If you want to know the truth for yourself, and not be a gullible rube who can be conned by anyone, this is the way.

Here is the method I propose. Do read one or several articles on the subject. But don’t read them for content or interpretation, read them for sources. Follow the footnotes. So, in the Persons Case, the important information to get from the web articles is this:

Section 24 of British North America Act, 1867

Supreme Court of Canada, 24 April 1928

Edwards v. Attorney General, Privy Council, 18 October 1929

Go and look at these. The Persons Case is especially easy to check for yourself because the legal documents are all online for free. Just Google ‘em. And you don’t have to read every word—even skimming them, reading the beginning and the end, doing a word search, these are all good ways of reading the sources.

Having the sources in front of you puts you in an entirely new position. Now you are the judge. The articles you read, you can now criticize. You are armed and dangerous. There is a limit to how much you can be taken in.

It is not that the modern writers and historians are all liars. Some of them are. But I think more often the problems arise from bad motivation, or laziness, or pressure of time, or any of the other hundred things that can provoke someone to do a bad job.

But there is a particular problem among people writing about history: a kind of credulity or superstition about sources. The Persons Case is a perfect example. So many writers just parrot what Nellie McClung wrote in her autobiography. And this works—they feel justified, and they get away with it—because it is what historians call a ‘primary source,’ it is testimony from someone who knew the event firsthand. Nevermind that, on examination, it is a faulty account. You can cite a primary source, therefore you have done your job. This is the superstition: the things you say come true because they are footnoted.

A similar error is a kind of misplaced humility about authorities. Whatever people say, modern schools and universities are profoundly hostile to independent thought. Anyone who comes through an undergraduate degree in the humanities has learned never, in formal writing, to state his own opinion, but only to repeat and reference the opinions of others. Hence, once an interpretation is made by a scholarly authority, that interpretation will be repeated and propagated.

I am not saying this is taught in universities. On the contrary all of it is explicitly discouraged. But it nevertheless appears to me to be the common result of an education in the humanities today.

All of this means that even a very brief reading of the sources will often leave you better armed than the authors of the modern articles. Certainly this is so with the Persons Case, where many of the authors seem never to have clapped eyes on the court judgments. It is much more fun to read the modern articles in this position. And more fruitful, because you can start to discern who are the truth-tellers and worthy historians.  

How to use Wikipedia

A word on Wikipedia. Wikipedia is much maligned and misunderstood. It is commonly banned from citation in university essays. There is a good reason for this and a bad.

The good reason for not citing Wikipedia is that it is not stable—it could change tomorrow. Since the point of citation is to direct the reader to the source you used, this makes it more or less impossible to cite. But that is not a problem with the source itself, it is only that other people can’t necessarily access it in the same form you did.

The bad reason for the ban is the claim that Wikipedia is not a reliable source for information. This is true, but it is not particularly true of Wikipedia. All kinds of articles which could be cited, like the one on the Persons Case from Library and Archives Canada, are also unreliable. Likewise books picked up off the library shelf. In my experience researching historical matters, Wikipedia is about as likely to offer a reliable account as any other source. For instance, on the Persons Case Wikipedia is remarkably good. Compared to many other, citable articles the Wikipedia article is exemplary. On the other hand, the article on ‘Just Price’ theory, when I checked it a few months back, was badly botched.

The same problems apply to Wikipedia as to any other historical article. It is not essentially different, and not more or less likely to provide good information.

Nevertheless Wikipedia is an extremely useful tool for practical historical research. This is because the articles frequently give links directly to the original sources. The fastest way to find out something for oneself is often to go to the Wikipedia article and scroll directly to the bottom and the list of External Links. Again the Persons Case article is exemplary.

Is practical historical knowledge possible?

The method I propose is exceedingly simple. Go directly to the source. Get firsthand not secondhand information.

But is this really practical? How often can you do this? And although it is easy with the Persons Case, what about for broader questions that can’t be answered with two or three specific, easily accessible sources?

And in light of what I said about the reliability of historical articles—and the general notions about history which we pick up from our culture are far, far worse—is any general historical knowledge possible?

Well first of all I would encourage you to make the attempt because you may be surprised how easy it is to go to the sources. Especially with Wikipedia. And you will save a great deal of time over other research methods. The best way to waste your time would be to start reading the latest books on the subject. Where you might spend an hour reading modern writers and learn nothing, spend five minutes with the sources and you will learn much. And it is exceedingly rewarding because having done it, you know something for yourself and are no longer an innocent pupil.

But frankly I think we should resign ourselves to being stuck with a pretty limited knowledge of history. Of course we know all kinds of things that are perfectly reliable, humanly speaking—names and dates mainly: in 1492 Columbus sailed the ocean blue, 1066 and all that. But the character of past peoples and civilizations, the moral meaning of this or that, what daily life was like in the past, the origin of institutions like marriage or democracy—of these all, most of us can know very little indeed. Not because it is intrinsically impossible, but because there are innumerable unreliable deceptive fables out there, and without going to the sources we lack the evidence to judge between them.

Basically there are very few subjects on which any of us can know much that’s worth more than straw. This is not peculiar to history. But it is acute with history because the past is peculiarly inaccessible. Therefore I would encourage a great deal more skepticism about historical claims than we are used to. I.e. we should resist accepting historical statements as facts unless we have some acqaintance with the evidence for them. And acquaintance with the evidence does not mean having read a book—it means having touched the sources.

However, all that said, let me not end on too pessimistic a note. I believe it is possible to have a wider knowledge of history, but that path runs through the sources. Once you have touched the sources, you can go back to your modern writers and evaluate them. You can test them against what you know, apply your discernment, and see who are the honest ones, who can be relied upon. From there, you can follow them in what they say on other subjects. If they are faithful in small things, you can trust them with large things. And you will find that those writers have their own trusted authorities. Once you have your boat on the river, you can follow it down all different streams, into territories you could never have charted yourself.

For what it is worth, I have found that C.S. Lewis is the most trustworthy of writers on historical subjects. He is not always correct, no one is, but he is always honest, always thorough, and he has a great sensitivity to what he reads.

This is the path I propose to historical knowledge: first the articles (especially Wikipedia), then the sources, then back to the articles and books. If you want to learn something true about the past—and consequently something practical, something real, something useful—this is the best way I know. 

Did women only become persons in 1929? The ‘Persons Case’ examined

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. 

C.S. Lewis on Dante's 'Divine Comedy'

Got home to day from four day’s stay with Barfield. We had promised ourselves some solid reading together, and in spite of the temptations of conversation and walking, we stuck to it: Aristotle’s Ethics all morning, walk after lunch, and then Dante’s Paradiso for the rest of the day.

The latter has really opened a new world to me. I don’t know whether it is really very different from the Inferno (B. says its as different as chalk from cheese — heaven from hell, would be more appropriate!) or whether I was specially receptive, but it certainly seemed to me that I had never seen at all what Dante was like before. Unfortunately the impression is so unlike anything else that I can hardly describe it for your benefit — a sort of mixture of intense, even crabbed, complexity in language and thought with (what seems impossible) at the very same time a feeling of spacious gliding movement, like a slow dance, or like flying. It is like the stars — endless mathematical subtility of orb, cycle, epicycle and ecliptic, unthinkable & unpicturable, & yet at the same time the freedom and liquidity of empty space and the triumphant certainty of movement. I should describe it as feeling more important than any poetry I have ever read. Whether it has the things you specially like is another question. It is seldom homely: perhaps not holy in our sense — it is too Catholic for that: and of course its blend of complexity and beauty is very like Catholic theology — wheel within wheel, but wheels of glory, and the One radiated through the Many.

From a letter to Arthur Greeves, 13? January 1930.

Good advice from Yves Congar

Experience and history have taught me that one must ALWAYS protest when one feels in conscience or by conviction that there are grounds for doing so. Of course, one thereby makes trouble for oneself, but something positive is nevertheless achieved.

Yves Congar, My Journal of the Council (2012).