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Title: Privy Council Appeal No. 121 of 1928 [Item 2 of 7]; Case of the Appellants
Date of first publication: 1928
Author: The Lords of the Judicial Committee of the Privy Council
Date first posted: July 30, 2025
Date last updated: July 30, 2025
Faded Page eBook #20250737

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In the Privy Council.
		No. 121 of 1928.
‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒

ON APPEAL FROM THE SUPREME COURT OF CANADA.

=============================

	IN THE MATTER of a Reference as to the meaning of the
		word “Persons” in Section 24 of The British North America
		Act 1867.

BETWEEN

HENRIETTA MUIR EDWARDS, NELLIE L.
	McCLUNG, LOUISE C. McKINNEY, EMILY
	F. MURPHY and IRENE PARLBY	Appellants	10

AND

THE ATTORNEY-GENERAL FOR THE DOMINION
	OF CANADA, THE ATTORNEY-GENERAL
	FOR THE PROVINCE OF QUEBEC and THE
	ATTORNEY-GENERAL FOR THE PROVINCE
	OF ALBERTA	Respondents.

=============================
CASE OF THE APPELLANTS.
=============================
Record.
p. 38.	1. This is an appeal by special leave from a judgment of the
	Supreme Court of Canada dated the 24th April 1928, answering in the
	negative the question (referred to the Court for hearing and consideration	20
	by the Governor-General of Canada in Council under the provisions of
pp. 3-4.	Section 60 of the Supreme Court Act), “Does the word ‘persons’ in
	Section 24 of the British North America Act 1867 include female persons?”

	2. The appeal raises the question whether the Governor-General of
	Canada has the power to summon women to the Senate of Canada.

	3. Of the Appellants, Henrietta Muir Edwards is the vice-president
	for the Province of Alberta of the National Council of Women for Canada;
	Nellie L. McClung and Louise C. McKinney were for several years members
	of the Legislative Assembly of the said province; Emily F. Murphy is a
	police magistrate in and for the said province; and Irene Parlby is a	30
	member of the Legislative Assembly of the said province and a member
	of the Executive Council thereof.

2
Record.
p. 3, l. 9.	4. On the 27th August 1927 the Appellants petitioned the Governor-General
	in Council to refer to the Supreme Court certain questions touching
	the powers of the Governor-General to summon female persons to the
	Senate and on the 19th October 1927 the Governor-General in Council
	referred to the Supreme Court the aforesaid question.
Appendix.
p. 21, l. 22.	5. Section 24 of the British North America Act is as follows:—
		“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	10
		be a member of the Senate and a Senator.”

	6. Section 24 is immediately preceded by a section setting out the
	qualifications of a Senator as follows:—

		“23. The Qualifications of a Senator shall be as follows:—

p. 20, l. 47.		“(1) 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,	20
		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;	30

		“(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
		Qualifications in the Electoral Division for which he is appointed,
		or shall be resident in that Division.”

pp. 20-22.	7. Throughout the sections dealing with the Senate (Sections 21 to 36
p. 22, l. 15.	inclusive), Senators are referred to by the pronouns “he,” “him” and
	“his,” and Section 32 provides that “When a vacancy happens in the		40
	Senate by resignation, death, or otherwise, the Governor-General shall
	by summons to a fit and qualified person fill the vacancy.”

3
Appendix.
p. 36, l. 23.	8. In certain respects irrelevant to this appeal the said sections have
p. 53, l. 8.	been modified consequent upon the admission into Canada and the creation
p. 54, l. 4.	since 1867 of new provinces.

	9. The word “person” or “persons” is also used in Sections 11,
pp. 19-32.	14, 41, 42, 63, 75, 83, 84, 89, 93, 127, 128 and 133 of the British North
p. 19, l. 20.	America Act relating (inter alia) to the constitution of the Privy Council
	(Section 11), the appointment of deputies of the Governor-General
p. 19, l. 47.	(Section 14), the qualifications and disqualifications of members of and voters
p. 23, l. 19.	at elections for the House of Commons (Sections 41 and 42), the constitution
p. 26, l. 19.	of the Executive Councils of Ontario and Quebec (Section 63), the constitution		10
p. 27, l. 33.	of the Legislative Council of Quebec (Section 75), the qualifications
p. 28, l. 24.	and disqualifications of members of and voters at elections for the
	Legislative Assemblies of Ontario and Quebec (Sections 83 and 84), the
	privileges with respect to denominational schools of any class of persons
	(Section 93), provincial Legislative Councillors becoming Senators
p. 32, l. 14.	(Section 127), persons authorised to administer oaths to members of Senate
	and of House of Commons (Section 128), and the use of the English and
p. 32, l. 35.	French languages in Parliament and elsewhere (Section 133). Particular
p. 23, l. 31.	reference should be made to the provisos to Sections 41 and 84 (continuing
p. 29, l. 3.	the existing laws relative to “the qualifications and disqualifications of		20
p. 28, l. 24;	persons to be elected” and to voters), and to Sections 83, 128 and 133.
p. 32, l. 23;	The proviso to Section 41 is as follows:—
p. 32, l. 35.
p. 23, l. 31.		“Provided that, until the Parliament of Canada otherwise
		provides, at any Election for a Member of the House of Commons
		for the District of Algoma, in addition to Persons qualified by the
		Law of the Province of Canada to vote, every male British subject,
		aged Twenty-one Years or upwards, being a householder, shall have
		a Vote.”

	The proviso to Section 84 is as follows:—

p. 29, l. 3.		“Provided that, until the Legislature of Ontario otherwise	30
		provides, at any Election for a Member of the Legislative Assembly
		of Ontario for the District of Algoma in addition to persons qualified
		by the Law of the Province of Canada to vote, every Male British
		Subject, aged twenty-one years or upwards, being a householder,
		shall have a vote.”

	The first paragraph of Section 133 is as follows:—

p. 32, l. 35.		“133. Either the English or the French language may be
		used by any Person in the Debates of the Houses of Parliament
		of Canada and of the Houses of the Legislature of Quebec; and
		both those Languages shall be used in the respective Records and	40
		Journals of those Houses; and either of those Languages may be
		used by any Person or in any Pleading or Process in or issuing
		from any Court of Canada established under this Act, and in or from
		all or any of the Courts of Quebec.”

4
Appendix.
p. 15, l. 37.	10. By Section IV of Lord Brougham’s Act 1850, which was in force
	at the time of the passing of the British North America Act, it is provided:—

		“Be it enacted, That in all Acts Words importing the Masculine
		Gender shall be deemed and taken to include Females, and the
		Singular to include the Plural, and the Plural the Singular, unless the
		contrary as to Gender or Number is expressly provided”;

p. 39, l. 13.	and by Section 1, Sub-section (1) of the Interpretation Act 1889 (which
	repealed Lord Brougham’s Act)—

		“. . . in every Act passed after the year one thousand eight
		hundred and fifty whether before or after the commencement of this	10
		Act, unless the contrary intention appears, words importing the
		masculine gender include females.”

p. 41.	11. In 1849 the Province of Canada enacted an Interpretation Act
p. 42, l. 1.	(12 Vic. cap. 10) containing a provision similar to Section IV of Lord
	Brougham’s Act above quoted. By statute of the said Province of the same
p. 42.	year (12 Vic. cap. 27) the Acts relating to the representation of the people in
	the Legislative Assembly of the Province were amended and consolidated,
	and by Section XLVI it was provided:—

		“And be it declared and enacted, that no woman is or shall be
		entitled to vote at any such election, whether for any County or	20
		Riding, City or Town.”

p. 48, l. 27.	The Revised Statutes of Nova Scotia (second series) 1859, cap. 1, contain a
p. 49.	similar Interpretation Clause, Section 7. By the same Statutes, Title II,
	cap. 5, the right to vote and to be a candidate for the Legislative Assembly
	is limited to male persons.

p. 54, l. 30.	12. By Statutes of Canada 1918, 8-9 George V, cap. 20, and 1920,
p. 55, l. 44.	10-11 George V, cap. 46, Section 38, female persons are given the right to vote
	and to be candidates at a Dominion election, and a female person has been
	elected and now sits as a member of the House of Commons.

p. 33.	13. By the British North America Act 1871 the Parliament of Canada		30
	was authorised to establish new provinces in any territories forming for the
	time being a part of the Dominion of Canada, and at the time of such
	establishment to make provision for the constitution and administration
	of such provinces and for the passing of laws for the peace, order and good
	government of such province and for its representation in Parliament.

p. 53.	14. The Alberta Act, Statutes of Canada 1905, 4-5 Edward VII, cap. 3
	(Sections 3 and 8) making provision for the Constitution of the Province of
	Alberta provides:—

p. 53, l. 36.		Section 3. “The provisions of the British North America
		Acts, 1867 to 1886, shall apply to the Province of Alberta in the

5
Appendix.
		same way and to the like extent as they apply to the provinces heretofore
		comprised in the Dominion, as if the said Province of Alberta
		had been one of the provinces originally united, except in so far
		as varied by this Act and except such provisions as are in terms
		made, or by reasonable intendment may be held to be, specially
		applicable to or only to affect one or more and not the whole of the
		said provinces.

p. 54, l. 8.		Section 8. “The Executive Council of the said province shall
		be composed of such persons, under such designations, as the
		Lieutenant-Governor from time to time thinks fit.”	10

p. 60, l. 18.	15. By Statutes of Alberta, 1916, 6-7 George V, cap. 5, women were
	given the right to vote at elections of members to serve in the Legislative
	Assembly and to be elected as members of the said Assembly, but there has
	been no change in the statutory provisions relating to the composition of
	the Executive Council in the said Province. Women have been elected
	as members of the Legislative Assembly of the said Province and a woman
	has been and is now a member of the Executive Council of the said Province.
	There has been similar legislation in all the other provinces of Canada, save
	the Province of Quebec.

	16. The reference was argued before the Supreme Court on the		20
	14th March 1928. Counsel for the Appellants contended that the word
	“persons” in Section 24, includes female persons. Counsel for the
	Attorney-General of Alberta supported the Appellants’ contention. Counsel
	for the Attorney-General of Canada contended that the word “persons”
	is limited to male persons and counsel for the Attorney-General of Quebec
	supported that contention. The Attorneys-General for the other provinces
	of Canada were duly notified but did not appear on the argument of the
	reference.
Record.
pp. 39-50.	17. The Chief Justice of Canada in his Reasons for Judgment, in which
	Mr. Justice Lamont and Mr. Justice Smith concurred, held that by the		30
	common law of England women were under a legal incapacity to hold
	public office and that Parliament, which, when contemplating a striking
	constitutional departure from the common law, is never at a loss for language
	to make its intention unmistakeable, had, by clear implication, excluded
	women from membership in the Senate. The word “persons” primâ facie
	includes women, but the preceding word “qualified” (a reference to the
	qualifications specified in Section 23) excludes women because the terms
	of Section 23 import that men only are eligible for appointment. The Chief
	Justice referred to the masculine pronouns—“he” and “his”—and cited
	Frost v. The King, reported in [1919], 1 Irish Reports, page 81. Furthermore,		40
	Clause 2 of Section 23 includes only “natural-born” subjects and
	those “naturalised” under statutory authority, and not those who become
	subjects by marriage—a provision which one would have looked for had it

6
Record.
	been intended to include women as eligible. Dealing with arguments raised
	by counsel for the present Appellants, the Chief Justice held that the
	adjective “qualified” was a conclusive answer to the argument based on
	the wider signification of the word “persons” in other sections, nor did
	the Interpretation Act or Lord Brougham’s Act (which was treated as the
	material Act) have any application, as “persons” is not a word importing
	the masculine gender.

	Chorlton v. Lings, reported in Law Reports, 4 Common Pleas, page 374,
	is conclusive against the Appellants alike on the question of the common
	law incapacity of women to exercise such public functions as those of a		10
	member of the Senate of Canada, and on that of their being expressly
	excluded from the class of “qualified persons” by the terms in which
	Section 23 is couched.

	Dealing with Section 11, which provides for the constitution of a new
	Privy Council for Canada, the Chief Justice expressed the opinion that
	“the word ‘persons,’ though unqualified, is probably used in the more
	restricted sense of ‘male persons.’ For the public offices thereby created
	women were, by the common law, ineligible and it would be dangerous to assume
	that by the use of the ambiguous term ‘persons’ the Imperial Parliament
	meant in 1867 to bring about so vast a constitutional change affecting		20
	Canadian women, as would be involved in making them eligible for selection
	as Privy Councillors.”

pp. 50-58.	18. The Judgment of Mr. Justice Duff is summarised in paragraphs 20
	and 21.

p. 59.	Mr. Justice Mignault concurred generally in the reasoning of the Chief
	Justice, and held the case covered by the authority of Chorlton v. Lings.
Appendix.
p. 21, l. 22.	19. The Appellants respectfully submit that the word “qualified”
p. 20, l. 47.	as used in Section 24, refers to the qualifications set out in the preceding
	Section 23, and that the interpretation which the Chief Justice of Canada
	and the learned judges who concurred with him placed upon the word		30
	“qualified” is erroneous and cannot be supported; and that the Chief
	Justice and learned judges wrongly applied the authorities cited by them.
	In particular the Appellants submit that the reasoning of the Chief Justice
	was erroneous in the following respects:—

		(a) The case of Frost v. The King reported in [1919] 1 Irish
		Reports, p. 81, is no authority for saying that the masculine pronoun
		in Section 23 imports that men only are eligible for appointment.
		Mr. Justice Ronan at page 90 points out that Lord Brougham’s
		Act changed the presumption from a presumption that a word
		importing the masculine gender excludes females to a presumption	40

7
Appendix.
	that females are included; and the decision rested on the effect of
	Statutes of 1827 and 1840 to which the old rule of construction
	applied.

	(b) In his Reasons for Judgment the Chief Justice assumes
	that by common law a wife took her husband’s nationality on
	marriage. On the contrary the rule was “Nemo potest exuere patriam,”
	and only by virtue of Section 16 of the Aliens Act 1844 (7 & 8 Vic.
	cap. 66) was any woman who marries a natural-born or naturalised
	British subject deemed and taken to be herself naturalised. Accordingly
	Clause (2) of Section 23 uses language apt to cover the case	10
p. 21, l. 1.	of those who become British subjects by marriage.

p. 21, l. 22.	(c) No striking constitutional departure from the common
	law is involved if “persons,” in Section 24, includes female persons,
	since Section 24 does not confer any right on “qualified persons.”
	Membership of the Senate depends on a summons issued by the
	Governor-General acting on the advice of his ministers. The fact
	that in 1867 the issue of a summons to a female person would not
	have been within the contemplation of Parliament does not militate
	against the Appellants’ contention that Parliament did not intend
	to use the word “persons” in Section 24 in the definitely restrictive	20
	sense of “male persons” in contradistinction to its general use
	elsewhere in the Act.

	(d) The Quebec resolutions form the basis of the British North
	America Act. The Act was framed with due regard to the relevant
	existing Canadian legislation and to meet Canadian conditions.
	The legislation in the Provinces of Canada and Nova Scotia respectively
	shows that both legislatures, having regard to the provisions
	of their respective Interpretation Acts, considered the word “persons”
	in Acts relating to voting for membership in the legislative assembly,
	included both male and female persons and expressly limited such	30
	rights to male persons, and in the British North America Act,
	where Parliament intended to restrict the word “persons” to
p. 23, l. 31.	male persons it expressly so provided. (See provisos to Sections 41
p. 29, l. 3.	and 81.)

	(e) The case of Chorlton v. Lings reported in Law Reports,
	4 Common Pleas, page 374 was decided solely on the language of
	the Representation of the People Act 1867. That Act entitled “every
	man” with certain qualifications and “not subject to any legal
	incapacity” to be registered as a voter. Legal incapacity was
	not defined by the Act and for that reason only reference was	40
	necessary to the common law disabilities of women. The alternative
	ground of the decision was that, as the Act by its terms was to be
	construed as one with earlier Acts (notably the Reform Act 1832)

8
Appendix.
		where the term “male person” was used, the word “man” did
		not import the feminine gender. Both grounds rested entirely
		on the wording of the Act and not on extraneous circumstances.

		(f) Chorlton v. Lings, and similar cases cited interpreting
		domestic statutes relating to the franchise, are not applicable to the
		construction of such a statute as the British North America Act,
		creating the constitution of a new nation with legislative bodies
		having plenary powers. The question is not one of the granting or
		withholding of the franchise but of the granting or withholding of
		executive and legislative powers.	10

		(g) The reasoning of the Chief Justice constrained him to hold
p. 19, l. 20.		that the word “persons” as used in Section 11 relating to the constitution
		of the Privy Council for Canada was limited to “male
		persons” with the resultant anomaly that a woman might be elected
		a member of the House of Commons, but could not be summoned by
		the Governor-General as a member of the Privy Council. Such a
		constitution would not be “similar in principle to that of the United
		Kingdom,” and it is submitted that such an interpretation is contrary
		to the real intent of the British North America Act.
Record.
p. 50-58.	20. The contentions of the Appellants on these points are supported		20
	by the Reasons for Judgment of Mr. Justice Duff. Having reviewed the
	general character and purpose of the British North America Act and
	examined the contentions for the narrow construction of the word
	“persons,” Mr. Justice Duff pointed out that there are three general lines
	of policy which the authors of the British North America Act might have
	pursued in relation to the common law incapacity of women, namely, to
	perpetuate the incapacity, to remove the incapacity, and to leave it to the
	Dominion Parliament or provincial legislatures to remove or to retain the
	incapacity. The word “persons” in Section 24 is consistent with any of
	these lines of policy. In Sections 41 and 84 “persons” includes women,		30
	as also in Sections 11 and 133. Such general inferences therefore as may
	arise from the language of the Act as a whole cannot be said to support a
	presumption in favour of the restricted interpretation. Turning to the
	reasoning based on the common law disabilities of women, Mr. Justice Duff
	doubted its applicability to the British North America Act. In 1867 it
	would have been a revolutionary step to appoint a woman to the Privy
	Council or to an Executive Council in Canada, or to make women eligible
	to the House of Commons or provincial legislatures or councils, yet it is
	quite plain, with respect to all these matters, that the fullest authority
	was given, and given in general terms, to Parliament and the legislatures.		40
	The value of the reasoning based on the “extraneous facts” becomes
	inconsiderable when compared with reasons deriving their force from the
	presumption that the Constitution in its executive branch was intended

9
Record.
	to be capable of adaptation to whatever changes in the law and practice
	relating to the election branch might be progressively required by changes
	in public opinion.

p. 57, l. 45.	21. On a special ground, however, Mr. Justice Duff answered the
	question referred to in the negative. Although attaching no importance
Appendix.	to the use of the masculine personal pronoun in Section 23, he thought tha
p. 21, l. 8.	Sub-section (3) points to the exclusion of married women, and, from
p. 7, l. 12;	examining the constitution of the Legislative Councils under Acts of 1791,
p. 12, l. 24;	1840 and 1854, he drew the inference that the British North America Act
p. 16, l. 38.	contemplated a second chamber similar to those provided by the Acts of		10
	1791 and 1840, the constitution of which should in all respects be fixed and
	determined by the Act itself. This constitution was to be in principle the
	same, though necessarily, in detail, not identical, with that of the second
	Chambers established by the earlier statutes, and under those statutes
	women were not eligible for appointment.

	22. The Appellants respectfully submit that the reasoning of
	Mr. Justice Duff was erroneous in the following respects:—

p. 21, l. 8.		(a) The language of Sub-section (3) of Section 23 does not point
		to the exclusion of married women. A married woman could possess
		the property qualification required by this sub-section. Apart from	20
		statute a married woman could be equitably seized of freehold
		property for her own use and benefit and by an Act respecting certain
		separate rights of property of married women, Consolidated Statutes
		of Upper Canada, cap. 73, Section 1, it was provided:—

		“Every woman, who has married since the Fourth day of
		May, one thousand eight hundred and fifty-nine, or who marries
		after this Act takes effect, without any marriage contract or
		settlement, shall and may, notwithstanding her coverture, have,
		hold and enjoy all her real and personal property, whether
		belonging to her before marriage, or acquired by her by inheritance,	30
		devise, bequest or gift, or as next of kin to an intestate or in any
		other way after marriage, free from the debts and obligations of
		her husband and from his control or disposition without her
		consent, in as full and ample a manner as if she continued sole and
		unmarried, any law, usage or custom to the contrary notwithstanding;
		but this clause shall not extend to any property received
		by a married woman from her husband during coverture.”

		(b) At the date of the passing of the British North America
		Act 1867, the qualifications of the persons capable of being appointed
		or elected, as members of the legislative council of the Province of	40
p. 42.		Canada were those enacted by the legislature of the said province

10
Appendix.
p. 16.		in 1856, pursuant to the power expressly given to the province by
		the Union Act Amendment Act of 1854. The legislative council
		so established in 1856 was different from those established by the
		Act of Union of 1840, mainly, in that:—

		(1) It was an elected and not an appointed body.

		(2) Each member was required to have a certain property
		qualification.

		(3) Selection of members was made from the several electoral
		divisions of the province instead of being made at large.

		The Senate, as constituted by the British North America Act	10
		1867, is an appointed body, but in other respects resembles the
		legislative council existing in Canada immediately prior to passing
		the British North America Act rather than the legislative council as
p. 21, l. 8.		constituted by the Act of Union. Each senator is required to have
		a minimum property qualification.

		Canada, in relation to the constitution of the Senate, is
		divided into three divisions to be equally represented in the Senate,
		and, in the case of Quebec, each of the twenty-four senators representing
		the province is appointed from one of the twenty-four
		electoral divisions of the province.	20

		It is submitted that the clauses of the British North America
		Act 1867 relating to the constitution of the Senate, follow generally
		the structure and phraseology of the Canadian Enactment of 1856
		rather than the Imperial Acts of 1791 and 1840; and that, just
		as under the Union Act Amendment Act of 1854, there was no
		prohibition against the inclusion of women in the membership of
		the legislative councils of Canada, so, by the British North America
		Act of 1867, there is no prohibition against the summoning of a
		woman to the Senate of Canada.

		(c) There is no sound reason for holding that the word	30
		“person” as used in Section 23 is limited to “male person”
		while holding that the word “person” as used in other sections
		of the British North America Act is used in its natural meaning
		and includes both male and female persons.
Record.
p. 58, l. 14.	23. Mr. Justice Duff concedes that under Section 33 of the British
Appendix	North America Act, supplemented by Section 1 of the Confederation
p. 22, l. 18.	Amendment Act of 1875, and by Section 4, Chapter 10, R.S.C. 1927,
	“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 . . . and the jurisdiction		40
	of the Senate is not confined to the right to pass upon questions arising
	as to qualification under Section 33,” and that if a woman were summoned

11
	by the Governor-General to the Senate the Senate could determine that
	she was entitled to be seated. It is submitted that in the foregoing
	Mr. Justice Duff has correctly interpreted the provisions of the British
	North America Act relating to the Senate, and that therefore “person”
	as used in Section 23 must include a female person, otherwise the Senate
	could not so determine.

	24. The Appellants further submit that the position in Canada
	prior to Confederation in reference to women voting was different from
	that in Great Britain and that arguments based upon conditions in Great
	Britain are not applicable to the construction of the British North	10
	America Act. It is clear that as far back as 1820 women in Canada had
	voted at elections for members of the Legislative Assembly, and the
	development of the common law in reference to the eligibility of women
	for appointment to public offices has not been the same in Canada as in
	Great Britain. Rex v. Cyr, 1917, 2 Western Weekly Reports, 1185; in
	appeal, 1917, 3 Western Weekly Reports 849.

	If women at common law were under a legal incapacity to hold public
	office, and consequently were not eligible for appointment to the Senate
	in 1867, that disability can be removed in Canada by appropriate legislation
	on the part of the Dominion and the provinces respectively, and once	20
	such legal incapacity is removed a woman becomes eligible for appointment
	to the Senate.

	25. The Appellants further submit that the Imperial Parliament did
	not withdraw from the control of the Executives, the Parliament and the
	Legislatures created by the British North America Act, the right to determine
	whether women should or should not be eligible for any or all public
	offices, and that in framing the Canadian Constitution they conferred upon
	the Executives, the Parliament and the Legislatures so created, full power
	and authority to deal with such matters.

	26. The Appellants humbly submit that the judgment of the Supreme	30
	Court of Canada is wrong and should be reversed and that the question
	should be answered in the affirmative, for the following, amongst other


	REASONS.

	(1)	Because the word “persons” in its ordinary sense
		includes female persons.

	(2)	Because the word “persons” is used in sections other
		than Section 24, and in such other sections includes
		female persons.

12

	(3)	Because no intention is apparent to restrict the word
		“persons” in Section 21 to male persons, since, by the
		Interpretation Act, the use of the masculine personal
		pronoun indicates no such intention.

	(4)	Because the cases held by the Supreme Court to be
		conclusive against the Appellants’ contentions when
		properly read are not applicable.

	(5)	Because, for the reasons given by Mr. Justice Duff,
		the Supreme Court should have rejected the arguments
		based on the common law incapacity of women.	10

	(6)	Because the use of the word “persons” in Section 24
		to include female persons is not a striking constitutional
		departure, but is in accordance with the general tenor
		of the British North America Act.

	(7)	Because under Section 33 the Senate has power to
		seat women summoned by the Governor-General as a
		Senator, the word “persons” therefore must include
		female persons.

		N. W. ROWELL.

		FRANK GAHAN.	20

	In the Privy Council.
	No. 121 of 1928.
	‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒
	On Appeal from the Supreme Court of Canada.
	=============================
	IN THE MATTER of a Reference to the meaning of
	the word “persons” in Section 24 of the British North
	America Act, 1867.


	Between

	HENRIETTA MUIR EDWARDS,
	NELLIE L. McCLUNG, LOUISE
	C. McKINNEY, EMILY F.
	MURPHY and IRENE PARLBY Appellants

	and

	THE ATTORNEY-GENERAL
	FOR THE DOMINION OF
	CANADA, THE ATTORNEY-GENERAL
	FOR THE PROVINCE
	OF QUEBEC and THE
	ATTORNEY-GENERAL FOR
	THE PROVINCE OF ALBERTA Respondents.


	=============================
	CASE OF THE APPELLANTS.
	=============================


	BLAKE & REDDEN,
	17 Victoria Street, S.W.1.

Transcriber’s Notes

This is a legal document and has been treated as such. Every attempt has been made to recreate the structure of the original document. The individual lines of the text and the corresponding line numbers on the right have been retained. In some circumstances individual lines may not fit on the screen and may be wrapped to a new line. Most sidenotes are page references in the Record of Proceedings or the Joint Appendix. These references are given on the left in positions as close to the original as possible. All of the documents in this set were derived from images provided at http://www.bailii.org/uk/cases/UKPC/1929/1929_86.html

All original spelling and punctuation has been retained, with the exception of a single extraneous comma which was removed.

[The end of Case of the Appellants re Privy Council Appeal No. 121 of 1928 [Item 2 of 7] by The Lords of the Judicial Committee of the Privy Council]