Emily Murphy, a police magistrate in and for the province of Alberta, became the first female judge in the British Commonwealth on January 1, 1916. It all happened when the Local Council of Women were attending court when a case involving prostitution came up. The judge asked the ladies to leave because the details would be too unseemly for the delicate ears of "decent women." The ladies related this to Emily Murphy and she promptly visited the Attorney General and asked why it wouldn't have made more sense to ask the men to leave and have an all woman court with a woman judge. His reply was, "Good idea." A few days later he asked Emily to take the job of magistrate for the newly organized Women's Court. Although she had no legal training, she accepted and became the first female magistrate in the British Empire.

On her very first day in Court and frequently thereafter, lawyers would strategically begin their presentation by objecting to having their case heard by a female judge because, they said, women were not persons as defined by our constitution, the British North America Act. They based their arguments on a decision rendered in 1876 by an English court, a decision which by then had become obsolete but had never been overturned. It stated that "Women are persons in matters of pains and penalties, but are not persons in matters of rights and privileges." "Since the office of magistrate is a privilege, they added, the current magistrate sits illegally. No decision coming from her court may bind anyone."

This oppressive taunt was overruled by the Supreme Court of Alberta, which confirmed Emily Murphy's appointment and the validity of her judgments. But, for the first female municipal judge in the British Empire, the story was far from over; in fact, the disgruntled lawyers had unwittingly given a boost to the women's cause. During the following years, women's associations, newspapers, as well as men and women from all provinces, proposed and then demanded Emily Murphy's appointment to the Senate.

Members of the Federated Women's Institutes, the National Council of Women (which Henrietta Edwards was the Vice president and conveyor of laws for) and the Montreal Women's Club were among the more than 10,000 citizens who signed petitions and wrote letters in support of Mrs. Murphy. Between 1917 and 1927, five consecutive Prime Ministers; Sir Robert L. Borden, Arthur Meighen (twice) and W.C. Mackenzie King(twice) indicated their support for such an appointment but said that their hands were tied because only 'qualified persons' could be appointed and that definition did not include women. W.L. Mackenzie King and Arthur Meighen promised to change the law but, in fact, did not.

Emily finally decided on a new strategy. She learned from her lawyer brother that Section 60 of the Supreme Court of Canada Act states that "any 5 citizens acting as a unit can appeal through the Federal Cabinet to the Supreme Court for clarification of a constitutional point." If the petition were accepted, all expenses would be paid for by the government. When they requested that Prime Minister MacKenzie King and his Cabinet pose their query to the Court concerning the process of being appointed to the Senate. Judge Murphy invited four politically active Alberta women to her home in Edmonton in late August, 1927.

They were Henrietta Muir Edwards: Vice-president for the province of Alberta of the National Council of Women for Canada, Louise McKinney and Nellie McClung; were members of the Legislative Assembly of Alberta for several years and Irene Parlby: member of the legislative assembly of Alberta and a member of the executive council. Thus the Famous 5 name was given to these women by the media. The petition the five women had written arrived at an opportune moment, because the 1927 Dominion-Provincial Conference had put Senate reform on its agenda and the women's second question dealt indeed with procedures for amending the BNA Act. However, admission of women into the Senate was not on the Conference agenda.

Prime Minister Mackenzie King referred the petition to the Minister of Justice, Ernest Lapointe, who thought that, in spite of previous decisions, it would be an act of justice to the women of Canada to obtain the opinion of the Supreme Court of Canada upon the point. The Privy Council Committee accepted the Justice Minister's recommendation and on October 19, 1927, referred the following question to the Supreme Court: "Does the word 'Person' in section 24 of the British North America Act, 1867, include female persons?" On October 29, the Supreme Court announced that the case would be heard on February 28, 1928, but the hearing was postponed to March 14 at the request of the Quebec Superior Court.

Six weeks later, on April 24, 1928, their attempt to make the word "persons" signify male and females failed. At the time Canada was under the rule of England therefore as the British House of Lords did not have a woman member, the justices concluded Canada should not change this tradition. With Prime Minister MacKenzie King's moral and financial support, the petition was referred to what was at that time Canada's highest court of appeal, the Judicial Committee of the Privy Council of England. On October 18, 1929, Lord Sankey, Lord Chancellor of the five male member Privy Council, announced that "yes, women are persons…and eligible to be summoned and may become Members of the Senate of Canada."
 

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