Lord Chancellor -

By S. 24, British North America Act, 1867, it is provided that:

“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."

The question at issue in this appeal is whether the words "qualified persons” in that section include a woman, and consequently whether women are eligible to be summoned to and become members of the Senate of Canada. 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 member of the Legislative Assembly of the said province and a member of the Executive Council thereof.

On 29th 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 upon 19th October 1927, the Governor-General in Council referred to the Supreme Court the aforesaid question. The case was heard before Anglin, C. J., Duff, J., Mignault, J., Lamont and Smith, JJ., and upon 24th April 1928, the Court answered the question in the negative; the question being understood to be “Are women eligible for appointment to the Senate of Canada.” The Chief Justice, whose judgment was concurred in by Lamont, J. and Smith, J. and substantially by Mignault, J. came to this conclusion upon broad lines mainly because of the Common Law disability of women to hold public office and from a consideration of various cases which had been decided under different statutes as to their right to vote for a member of Parliament. Duff, J. on the other hand, did not agree with this view. He 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 S. 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.

Their Lordships are of opinion that the word “persons “in S. 24 does include women and that women are eligible to be summoned to and become members of the Senate of Canada.

In coming to a determination as to the meaning of a particular word in a particular Act of Parliament it is permissible to consider two points, viz.; (i) The external evidence derived from extraneous circumstances such as previous legislation and decided cases. (ii) internal evidence derived from the Act itself.

As the learned Counsel on both sides have made great researches and invited their Lordships to consider the legal petition of women from the earliest times, in justice to their argument they propose to do so and accordingly turn to the first of the above points, viz.: (i) The external evidence derived from extraneous circumstances.

The exclusion of women from all public offices is a relic of days more barbarous than ours, but it must be remembered that the necessity of the times often forced on man customs which later years were not necessary. Such exclusion is probably due to the fact that the deliberative assemblies of the early tribes were attended by men under arms, and women did not bear arms. “Nihil autem neque publicac neque privatae rei, nisi armati, agunt “: Tacitus Germania, C. 13. Yet the tribes did not despise the advice of women :

“Inesse quin etiam sanctum et providum putant, nec aut consilia earum aspernantur aut responsa neglegunt. "

Germania C. 8.

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