14 March 1868|
|Died||17 October 1933
|Known for||Women's rights activist|
Emily Murphy (born Emily Gowan Ferguson; 14 March 1868 – 17 October 1933) was a Canadian women's rights activist, jurist, and author. In 1916, she became the first female magistrate in Canada, and in the British Empire. She is best known for her contributions to Canadian feminism, specifically to the question of whether women were "persons" under Canadian law.
Murphy is known as one of the "The Famous Five" (also called "The Valiant Five")—a group of Canadian women’s rights activists that also included Henrietta Muir Edwards, Nellie McClung, Louise McKinney and Irene Parlby. In 1927, the women launched the "Persons Case," contending that women could be "qualified persons" eligible to sit in the Senate. The Supreme Court of Canada ruled that they were not. However, upon appeal to the Judicial Committee of the British Privy Council, the court of last resort for Canada at that time, the women won their case.
Emily Murphy was born in Cookstown, Ontario, the third child of Isaac and Emily Ferguson. Isaac Ferguson was a successful businessman and property owner. As a child, Murphy frequently joined her two older brothers Thomas and Gowan in their adventures; their father encouraged this behaviour and often had his sons and daughters share responsibilities equally. Considering her family involvement in the law and politics, it is no surprise that Murphy became one of the most influential suffragists in Canada. Murphy grew up under the influence of her maternal grandfather, Ogle R. Gowan who was a politician that founded a local branch of the Orange Order in 1830 and two uncles who were a Supreme Court justice and a Senator, respectively. Her brother also became a lawyer and another member of the Supreme Court. Her family were prominent members of society and she benefited from parents who supported their daughter receiving formal academic education. She is as well related to James Robert Gowan, who was a lawyer, judge, and senator. Murphy attended Bishop Strachan School, an exclusive Anglican private school for girls in Toronto and, through a friend, she met her future husband Arthur Murphy who was 11 years her senior. In 1887, they married each other, and had four daughters; Madeleine, Evelyn, Doris and Kathleen. Doris died young of diphtheria. After Doris’ death, the family decided to try a new setting and moved west to Swan River, Manitoba in 1903 and then to Edmonton, Alberta in 1907.
While Arthur was working as an Anglican priest, Murphy explored her new surroundings and became increasingly aware of the poverty that existed. At the age of 40, when her children became independent and began their separate lives, Murphy began to actively organize women’s groups where the isolated housewives could meet and discuss ideas and plan group projects. In addition to these organizations, Murphy began to speak openly and frankly about the disadvantaged and the poor living conditions that surrounded their society. Her strong interest in the rights and protection of women and children intensified when she was made aware of an unjust experience of an Albertan woman whose husband sold the family farm; the husband then abandoned his wife and children who were left homeless and penniless. At that time, property laws did not leave the wife with any legal recourse. This case motivated Murphy to create a campaign that assured the property rights of married women. With the support of many rural women, Murphy began to pressure the Alberta government to allow women to retain the rights of their land. In 1916, Murphy successfully persuaded the Alberta legislature to pass the Dower Act that would allow a woman legal rights to one third of her husband’s property. Murphy’s reputation as a women’s rights activist was established by this first political victory.
Murphy’s success in the fight for the Dower Act, along with her work through the Local Council of Women and her increasing awareness of women’s rights, influenced her request for a female magistrate in the women’s court. In 1916, Murphy, along with a group of women, attempted to observe a trial for women who were labelled prostitutes and were arrested for "questionable" circumstances. The women were asked to leave the courtroom on the claims that the statement was not "fit for mixed company". This outcome was unacceptable to Murphy and she protested to the provincial Attorney General. "If the evidence is not fit to be heard in mixed company," she argued, "then the government must set up a special court presided over by women, to try other women." Murphy’s request was approved and she became the first woman police magistrate for the British Empire. Her appointment as judge, however, became the cause for her greatest adversity concerning women within the law. In her first case in Alberta on 1 July 1916, she found the prisoner guilty. The prisoner's attorney called into question her right to pass sentence, since she was not legally a person. The Provincial Supreme Court denied the appeal.
In 1917, she headed the battle to have women declared as "persons" in Canada, and, consequently, qualified to serve in the Senate. Lawyer, Eardley Jackson, challenged her position as judge because women were not considered "persons" under the British North America Act 1867. This understanding was based on a British Common Law ruling of 1876, which stated, "women were eligible for pains and penalties, but not rights and privileges."
Murphy began to work on a plan to ask for clarification of how women were regarded in the BNA act and how they were to become Senators. In order for her question to be considered, she needed at least five citizens to submit the question as a group. She enlisted the help of four other Albertan women and on 27 August 1927 she and human rights activist Nellie McClung, ex MLA Louise McKinney, women’s rights campaigners Henrietta Edwards and Irene Parlby signed the petition to the federal Cabinet, asking that the federal government refer the issue to the Supreme Court of Canada. The women's petition set out two questions, but the federal government re-framed it as one question, asking the Supreme Court: "Does the word 'person' in Section 24 of the British North America Act include female persons?" The campaign became known as The Persons Case and reached the Supreme Court of Canada on March 1928. The Court held that women were not qualified to sit in the Senate. The five women then appealed to the Judicial Committee of the Privy Council in Britain. On 18 October 1929, in a decision called Edwards v. Canada (Attorney General), the Privy Council declared that women were considered as "persons" under the BNA Act and were eligible to serve in the Senate.
The women were known as the Famous Five and were considered leaders in education for social reform and women’s rights. They challenged convention and established an important precedent in Canadian history. In Canada’s Senate Chamber, the five women are honoured with a plaque that reads, "To further the cause of womankind these five outstanding pioneer women caused steps to be taken resulting in the recognition by the Privy Council of women as persons eligible for appointment to the Senate of Canada." Murphy, along with the rest of the Famous Five, was featured on the back of one of the Canadian 50 dollar bills issued in 2004 as part of the Canadian Journey Series. In October 2009, the Senate voted to name Murphy and the rest of the Five Canada's first "honorary senators."
Although Murphy’s views on race changed over the course of her life, the perspective contained in her book, The Black Candle, is considered the most consequential because it played a role in creating a widespread "war on drugs mentality" leading to legislation that "defined addiction as a law enforcement problem." A series of articles in Maclean's magazine under her pen name, "Janey Canuck," forms the basis of The Black Candle. Using extensive anecdotes and "expert" opinion, The Black Candle depicts an alarming picture of drug abuse in Canada, detailing Murphy’s understanding of the use and effects of opium, cocaine, and pharmaceuticals, as well as a "new menace," "marihuana." Murphy’s concern with drugs began when she started coming into "disproportionate contact with Chinese people" in her courtroom because they were over represented in the criminal justice system. In addition to professional expertise and her own observations, Murphy was also given a tour of opium dens in Vancouver’s Chinatown by local police detectives. Vancouver at the time was in the midst of a moral panic over drugs that was part of the anti-Oriental campaign that precipitated the Chinese Immigration Act of 1923. Canadian drug historian Catherine Carstairs has argued that Murphy’s importance regarding drug policy has been "overstated" because she did not have an impact on the drug panic in Vancouver, but that nevertheless "her articles did mark a turning point and her book … brought the Vancouver drug panic to a larger Canadian audience."
Race permeates The Black Candle, and is intricately entwined with the drug trade and addiction in Murphy’s analysis. Yet she is ambiguous in her treatment of non-whites. In one passage, for example, she chastises whites who use the Chinese as "scapegoats," while elsewhere, she refers to the Chinese man as a "visitor" in this country, and that "it might be wise to put him out" if it turns out that this visitor carries "poisoned lollipops in his pocket and feeds them to our children." Drug addiction, however, not the Chinese immigrant, is "a scourge so dreadful in its effects that it threatens the very foundations of civilization," and which laws therefore need to target for eradication. Drugs victimize everyone, and members of all races perpetrate the drug trade, according to Murphy. At the same time, she does not depart from the dominant view of middle class whites at the time that "races" were discrete, biologically determined categories, naturally ranked in a hierarchy. In this scheme, the white race was facing degradation through miscegenation, while the more prolific "black and yellow races may yet obtain the ascendancy" and thus threatened to "wrest the leadership of the world from the British."
Murphy’s ambiguity regarding non-whites is reflected in scholarly debates, but what is not controversial is that The Black Candle was written "for the express purpose of arousing public demands for stricter drug legislation" and that in this she was to some degree successful. This motivation may have influenced her racial analysis by playing to the popular prejudices of her white audiences. On the other hand, she may have deliberately tried to distance herself from those prejudices, especially the ones propagated by the more vulgar and hysterical Asian exclusionists in British Columbia in order to maximize her own credibility and sway her more moderate readers.
During the early twentieth century, scientific knowledge emerged in the forefront of social importance. Advances in science and technology were thought to hold answers to current and future social problems. Murphy was among those who thought that societal problems like alcoholism, drug abuse and crime resulted from mental deficiencies. In a 1932 article titled " Overpopulation and Birth Control", she states: "... over-population [is a] basic problem of all…none of our troubles can even be allayed until this is remedied." As the politics behind the Second World War continued to develop, Murphy, who was a pacifist, theorized that the only reason for war was that nations needed to fight for land to accommodate their growing populations. Her argument was that: if there was population control, people would not need as much land. Without the constant need for more land, war would cease to exist. Her solution to these social issues was eugenics. Murphy supported selective breeding and the compulsory sterilization of those individuals who were considered mentally deficient. She believed that the mentally and socially inferior reproduced more than the "human thoroughbreds" and appealed to the Alberta Legislative Assembly for forced sterilization. In a petition, she wrote that mentally defective children were "a menace to society and an enormous cost to the state...science is proving that mental defectiveness is a transmittable hereditary condition." She wrote to Minister of Agriculture and Health, George Hoadley that two female "feeble-minded" mental patients already bred several offspring. She called it "a neglect amounting to a crime to permit these two women to go on bearing children". Due in part to her heavy advocacy of compulsory sterilization, thousands of Albertans were sterilized without their knowledge or consent under the Sexual Sterilization Act of Alberta before its repeal in 1972.
Her legacy is disputed, with her important contributions to feminism being weighed against her nativist views. In addition to being against immigration, she was a strong supporter of Alberta's legislation for the Sexual Sterilization of the Insane at a time when compulsory sterilization was practiced in some North American jurisdictions. However, it has been argued that that those in the vanguard make mistakes; Murphy's views were a product of her times.
Recent memorializing of the Famous Five, such as the illustration on the back of the fifty dollar bill, has been used as the occasion for re-evaluating Murphy’s legacy. Marijuana decriminalization activists especially have targeted Murphy for criticism as part of the movement to discredit marijuana prohibition. They charge that today’s drug laws are built on the racist foundations laid by Murphy and that the drug war has harmed more women than the Persons Case has benefited. Conversely, Murphy’s defenders have been quick to point out that she was writing at a time when white racism was typical, not exceptional, and that Murphy’s views were more progressive than many of her peers. Moreover, her views on race or drugs in no way negate Murphy’s positive accomplishments in advancing the legal status of women.
Emily Murphy's house in Edmonton, Alberta is on the Canadian Register of Historic People and Places. She lived in this home from 1919 until her death in 1933. It is now located on the campus of the University of Alberta and houses the Student Legal Services.
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