Thursday, January 28, 2016

Women's suffrage at 100: A million women voters in 1916-17?

I think we need to declare a little louder.  Today marks the hundredth anniversary of women securing the vote in Canada both federally and provincially -- though only in one province at first.  

I don't usually post anything like original research here, but after Tuesday's post I looked a little deeper. And it seems more clear and more certain the standard account of woman's suffrage needs some work. I still await correction if I've missed something fundamental.  But let me lay it out in some detail.

The Franchise Act, 1898 revoked John A. Macdonald's infamous Franchise Act of 1885 and established that the requirements for voting established in each province would henceforth also apply in federal elections.  That is, there was no longer a separate set of federal rules on who voted; the provincial franchise applied federally, even if that meant different criteria province by province.  This act was still in force in 1916, so when Manitoba established women's suffrage in that province on January 28, 1916, women qualified to vote in Manitoba could also vote in federal elections. Saskatchewan followed Manitoba's lead on 14 March 1916, Alberta on 19 April 1916, BC a year later on 5 April 1917, and Ontario on 12 April 1917.  In each of these provinces, Canada's Franchise Act, 1898 meant that the right to vote provincially automatically conferred the right to vote federally. By April 1917 about a million women "from the Ottawa River to the Pacific coast," as one parliamentarian put it, held the right to vote federally as well as provincially.  There had not been a federal election since 1911, but the right was established.

I make a point of these details, because the standard account of woman's suffrage in Canada denies that women could vote federally, until the federal government gave a few favoured women the vote late in 1917 and then introduced a much wider women's franchise in 1918 for the postwar federal election of 1921. Here, for instance is the subheading of the Canadian Encyclopedia article on Women's Suffrage, which summarizes the standard account:
Women in Canada obtained the right to vote in a sporadic fashion. Federal authorities granted them the franchise in 1918, more than two years after the women of Manitoba became the first to vote at the provincial level.
I'm becoming more and more sure the standard account -- provincial voting only for women until 1918 -- is wrong. As Wilfrid Laurier described the existing situation on September 6, 1917,
in five provinces, Ontario, Manitoba, Saskatchewan, Alberta and British Columbia, women now have the franchise 
It is clear Laurier was talking about the federal franchise, because in September 1917 women were about to lose their right to vote federally, and Laurier was speaking against precisely that.

Though in 1898 the federal government had renounced the power to set the federal franchise, it could always re-acquire it. The British North America Act, 1867 allowed, but did not require, federal control of the federal franchise.  Then in August 1917, with a federal election looming, the federal parliament passed the Military Voters Act, giving the right to vote in federal elections to Canadians, of any age, gender, or race serving in any of the Canadian forces at home or overseas, or even in Imperial forces if electoral officers could find them (i.e, if they were still in Canada, mostly).  Since the troops overseas might not know who their home constituency candidates were or who to choose, they would even be able to vote for the party instead of a candidate -- and the party could then apply their votes where they needed them most.

In September 1917 the government introduced a second bill, the War-time Elections Act.  This act also asserted the federal power to set and adjust the federal franchise. It declared that henceforth a women could vote in federal elections if she was "the wife, widow, mother, sister, or daughter" of a person serving in the forces. Not otherwise. It also disenfranchised conscientious objectors and any person naturalized as a Canadian since 1902 (because many were from central Europe and might be pro-German ore at least lukewarm about the Canadian war effort). Literally millions of Canadian citizens were being disenfranchised from federal elections for the duration of the war.

Hearing Arthur Meighen claim, while introducing the War-time Elections bill, that in general provincial franchise qualifications would still apply, opposition leader Wilfrid Laurier protested:
If I understand him right, he has made quite a departure from those qualifications because in five provinces, Ontario, Manitoba, Saskatchewan , Alberta, and British Columbia, women now have the franchise, but under this legislation, the women of those provinces, with the exception of those who happen to be relatives of men who have enlisted, are deprived of the franchise.
Yes, acknowledged Meighen, that is correct.

There were, of course, no women in parliament to address this issue of female disenfranchisement.  But several among the small bloc of Liberals in opposition began to hammer, not only at the rigging of the male franchise, but also at the disenfranchising of so many women.  Frank Oliver MP:  "We are to disenfranchise the women of five of the great provinces of Canada."  Onesime Turgeon MP: "By this bill an injustice is done to the women of five provinces." J.H. Sinclair MP: "It disenfranchises about a million women who live between the Ottawa River and the Pacific Coast."

As the debate went on, some Conservatives, including Prime Minister Borden, began to deny that women were being disenfranchised. They never had the federal vote, they claimed. Some Liberals appear to have been convinced, but gradually a few returned to the question of the pre-existing women's vote now being removed. Meighen, who had already acknowledge the disenfranchisement, began to hedge and temporize.  Finally, he declared the government had been advised by its lawyers that provincial legislation had set the rules for which persons could vote in federal elections,  But -- presto -- women were not persons under the law, so the provincial legislation did not apply federally, since the Franchise Act, 1898, authorized the provinces to determine what persons could vote in federal elections,

Had this been tested in court, Laurier demanded to know?  Was there a judicial opinion on this? There was no time to find that out, said Meighen, the bill had to be passed before the election. And once the bill passed (as he did not mention), it would be beyond the courts' powers, since the federal government did have the power to give and withdraw the right to vote in federal election as it chose.

The War-time Elections bill did pass in the fall of 1917. No women had voted in a federal election between January 1916 and September 1917, since there wasn't one. Now none could, unless they served in the forces or had a family member who did.

At the start of this debate in September 1917, there was an acceptance in the House, ill-informed a many members appear to have been, that women west of the Ottawa River did indeed hold the right to vote in federal elections. And there is lots of historical evidence (see Sharpe and McMahon, The Persons Case) that the courts of the day would have deferred to the legislatures on the personhood question, if the legislatures had been willing to act on it. Surely the western legislatures had very directly declared that persons eligible to vote included women.

I conclude therefore, that when the Ontario and western legislatures specifically recognized women as voters in 1916 and 1917, they became voters both federally and provincially.  The courts were not consulted, but if consulted, it seems likely they would have deferred to the will of the legislators as expressed in the five provincial acts of 1916 and 1917.

I think we ought to be saying that most women in Canada (all those west of Quebec who were British subjects and of age) secured the right to vote in 1916 and 1917, both federally and provincially, with Manitoba leading the way. The federal Parliament took away the right to vote from the vast majority of those women -- maybe a million of them -- in the fall of 1917, before giving it back in 1918.

Votes for women in Canada:  starts a hundred years ago today, federally as well as provincially.  I know the textbook you use doesn't say so, but I think the textbook you use needs revision.

We recently saw a Canadian government use a crisis to strip the rights of citizenship from certain Canadians.  There was precedent for that a hundred years ago too.

(Quotations above are all from the House of Commons Debates, 1917, Vol. 6, on the War-times Election Act, September 6-11, 1917.)

Update and Caution, January 29:  I see a few complications arising and some more work to do.  In 1916 the federal cabinet did receive a legal opinion that the "persons" interpretation could be used to block the application of the provincial women's suffrage acts to federal elections. And there are complications from a Dominion Elections Act 1906 I have yet to follow up. (Why aren't the historical Statutes of Canada available online?)

Women's access to the federal vote was least controversial in 1916-7. In subsequent years, the federal government's citing of the legal opinion it had in hand seems to have been persuasive to many. By 1929 Agnes McPhail and other suffrage campaigners had accepted, correctly or not, that only the federal suffrage statutes (1917, 1918, 1920) had been relevant to the federal vote for women; they do not seem to have claimed women held the federal franchise in 1916-17.  On the other hand, the constitutional scholar A.H.F. Lefroy wrote c1917
Manitoba, Alberta, and Saskatchewan have, within the last year or two, given women the vote for their provincial elections, which will in the case of Manitoba, apparently, though not in the case of Saskatchewan and Alberta (see Dominion Elections Act, R. S. C. 1906, c. 6, ss. 10, 32), secure them also the federal vote.
The Manitoba interpretation would also apply to British Columbia and Ontario by the spring of 1917, and Laurier (who had brought in the 1906 act) clearly held to a stronger version of this in the September 1917 Commons debates.  More to do, evidently.


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