On the Legal Rights and Responsibilities of the Deaf and Dumb

Book excerpt

By: Harvey P. Peet

Date: 1857

Source: Peet, Harvey P. On the Legal Rights and Responsibilities of the Deaf and Dumb. Richmond, Va.: C. H. Wynne's Steam-Powered Press, 1857.

About the Author: Harvey Prindle Peet was an educator who dedicated his professional life to work with deaf individuals. He believed that educational materials for this group were lacking and wrote many books for classroom use. In addition, Peet was a prolific writer on sign language, teaching methods for the deaf, and the merits of instruction in verbal articulation. His writings also addressed the philosophical beliefs and misconceptions of popular culture regarding the deaf population.

INTRODUCTION

Historically, deaf people have been treated as though they were cognitively impaired, particularly if they signed or wrote rather than spoke in order to communicate with the hearing world. This probably stemmed from early theories linking intelligence with spoken language. Since most early learning, as well as the transmission of cultural and traditional knowledge, was accomplished orally, persons who were deaf were excluded from educational opportunities by the prevailing culture. Deaf people had few, if any, civil rights, and were often confined to institutions and asylums for the insane because of the eccentricities of their behavior and speech. In the Middle Ages, it was believed that deaf people were somehow more sinful than the hearing population, since they were unable to hear religious communications. As a result, the deaf were thought to be unable to hold spiritual beliefs or to participate in a sentient way in religious practices.

Fortunately, in the sixteenth century, society's view of the deaf began to change. The Spanish monk Pedro Ponce de Leon established the world's first school for the deaf at the monastery of San Salvador near Madrid. He developed methods to teach reading, writing, and speaking to deaf members of nobility in order to prepare them to inherit money and property. Pablo Bonet developed and used a single hand, manual alphabet in order to teach deaf members of the Spanish nobility to read; he also taught them to speak. De Leon's and Bonet's methods laid the foundation for the development of the French and American Sign Languages, the predominant manual languages in contemporary culture.

The work of de Leon and Bonet was broadened and extended during the eighteenth century by Charles Michel de L'Eppe, who founded a public school for deaf students in France in 1771. He also wrote textbooks on teaching deaf students using manual (sign) language. De L'Eppe is credited with writing the first French sign language dictionary.

In the early 1800s, an American theologian named Thomas Gallaudet saw a French Sign Language presentation involving a deaf teacher named Laurent Clerc. He was so impressed with what he learned that he went to France to study their teaching methods. In 1817, Gallaudet and Clerc returned to America and founded the First American School for the Deaf in Hartford, Connecticut (named the Connecticut Asylum for the Education and Instruction of Deaf and Dumb Persons until 1895). They translated French Sign Language for use with American students.

A substantial number of the early students at the school came from Martha's Vineyard, which had an unusually large deaf population. The deaf population of Martha's Vineyard was a fully recognized part of the Vineyard community, and they had developed a local sign language. They also were pioneers in using simultaneous sign language translation at all spoken public meetings. The children from Martha's Vineyard taught their signs to the School's staff and had a significant impact on the development of American Sign Language (ASL).

PRIMARY SOURCE

The result of this examination of English common law, as the foundation of American law, is, that the Deaf and Dumb have ever possessed the same rights of inheritance as those who are not deaf and dumb: and, like the latter, are restricted in the full enjoyment of such rights only upon proof of the want of the requisite intelligence. This, also, we believe, is the case throughout Europe; the old feudal codes having mostly passed away. As to what would be deemed satisfactory proof of the requisite intelligence, there is evidently room for much diversity of opinion; and different decisions may be given in similar cases, according to the degree of intelligence and freedom from prejudice of the judge or jury. In such cases, indeed, the intelligence of the judge has often more to do with the decision than the intelligence of the Deaf Mute.

We will next consider whether a Deaf Mute can make a valid will. Evidently, a person deprived of the control of his property during his lifetime, cannot consistently be permitted to alienate it from the legal heirs at his death. The Roman law on this point we have already cited. The English law would decide this question according to the actual intelligence manifested. Other European codes, more influenced by the spirit of the Roman law, exact formalities which only Deaf Mutes able to write can comply with. In France, a Deaf Mute able to read and write, is admitted on all hands to be competent to make a valid will, writing, signing and dating it with his own hand, conforming in this to the spirit of the Roman law, and avoiding the ignorant exclusion of Deaf Mutes from birth from the possibility of education. It is required, however, that "the judges should have positive proofs that the Deaf Mute testator had exact notions of the nature and effects of a testament; that reading was in him not merely an operation of the eyes, but also an operation of the understanding, giving a sense to the written characters, and acquiring by them knowledge of the ideas of another; that writing was the manifestation of his own thoughts; that on the whole, the testamentary dispositions were such as showed the effect of an intelligent will—and these proofs are at the charge of the person to whose benefit the will is made."

From this statement, taken from a standard French work, it appears that, whereas in ordinary cases, every person of lawful age is considered competent to make a will till the contrary is proved, a Deaf Mute, on the other hand, is considered incompetent till his competency is proved.

Prioux records a case in which the holograph will of a Deaf Mute, Theresa Charlotte Lange, was, in August, 1838, annulled by the Tribunal of Saint Jean d'Angely, on the ground that, though it was not contested that the will was written by the own hand of the testatrix, yet there was no evidence that she could use writing to express her own ideas, but, on the contrary, evidence that she could only express herself by signs. As this case was an important one, and seems to have been argued at much length, and carefully considered by the court, we will give an abstract of the points in which the judgment was founded:

"The heirs have not denied that the characters which compose the material body of the document purporting to be the testament of Theresa Charlotte Lange were the work of her hand, but maintained that they could not be the work of her intelligence; hence that there was no occasion for a verification of the hand-writing, or for enquiring at whose charge such verification should be."

"No provision of the law places the Deaf Mute in any exceptional case as to the capacity of making a will; he possesses the common rights of other men; and therefore can, like the generality of citizens, bequeath or give away property, provided he complies with the formalities exacted by law."

"If in consequence of his infirmity, he cannot make a will by acte publique, he cannot, at least, when he knows how to write, when he can manifest his will in an unequivocal manner, contest his ability to make a holographic or a mystique testament; this is a point on which there is now no difficulty."

"To be valid, the holographic testament must be written, dated and signed by the hand of the testator."

"In ordinary language, and in the strict acceptation of the term, it is true that to write may be understood to trace on paper letters or characters, no regard being had to their signification."

"But in the eyes of the law, and in its more extended acceptation, this expression has a very different sense; and it is evident that in a matter of such importance as making a will, to write most evidently cannot be understood of the purely mechanical act which consists in copying, instinctively or by imitation, characters that have been placed before one's eyes, and of which the copier does not know the use or meaning; that to know how to write is to be able at once to conceive, collect, arrange one's thoughts, put them in form and express them on paper by means of certain conventional characters; and consequently, it is much more an operation of the mind, a work of the intelligence, than a labor of the hand."

"Whence it follows, that to know how to write in the true acceptation of the word, it is indispensable to know the significance of words, to comprehend the relations which they have, the objects and ideas which they represent; that thus to establish that an individual knows or knew how to write, it is not enough to produce a sample of characters placed one after another; this would only prove that he had been habituated to figure letters, or to draw; but it is necessary to prove that he has received, whether in a public institution or by the care of capable persons, the education necessary to attain this result; this is above all true when the question is of a Deaf Mute from birth, who, deprived of two organs, so essential as hearing and speech, whatever natural genius and capacity he might have otherwise, has so many difficulties to overcome in order to develop, or rather to form, to re-temper his intelligence."

"When such a proof becomes necessary, it is without doubt incumbent on the party who would have the benefit of a writing attributed to a Deaf Mute; in this matter the general rule is, the state in which nature has placed the individual afflicted with dumbness and deafness; the exception is, the modification or amelioration wrought in that state: the presumption of law is, that the Deaf Mute is illiterate, and the fact to be proved, that he has been brought out of his ignorance by education—which is consequently to be proved by him who alleges this fact, or claims the exception."

"Therese Charlotte Lange was born deaf and dumb. Nothing offered in evidence shows her to have been, whether in youth or at a more advanced age, placed in an establishment consecrated to the special education of those unfortunate persons afflicted like her with this double and deplorable infirmity. It is alleged, indeed, that on her arrival in France, she was, as well as her sister Rose, also deaf and dumb from birth, received by the Abbé Hardy, then vicar-general of the bishoprick of Saintes, and that this ecclesiastic, devoting himself wholly to the care of their education, had taught them to read and to write; but no proof of this fact is to be found in the documents produced in the case: the only piece which has been adduced in support of these allegations, the acte of 19th September, 1789, far from justifying them, seems to prove the contrary."

"In effect it results from this acte that one of the ancestors of the plaintiffs had wished at that time to withdraw the demoiselles Rose and Charlotte Lange from under the guardianship of the Vicar Hardy, in order that they should, as he said, re-enter the bosom of their family; and it was only by gestures and signs that Therese Charlotte, particularly, manifested her opposition, and her refusal to adhere to the demand of the Sieur D. F. Desportes. Four witnesses, whose communications with the demoiselles Lange were frequent, were on this occasion called in to assist at this declaration in mimic language, and to interpret the signs by which they made known their resolutions; all these circumstances are such as to give a strong suspicion, in spite of the physical fact (fait materiel) of the apposition of the signature of Charlotte Lange at the bottom of the protestation, which was written, as is mentioned in the acte itself, by Rose Lange—that signs were the only means she knew to manifest her will or wishes."

"From this epoch to that of her marriage in 1821, nothing is shown which could tend to invalidate this conclusion. If it is alleged that she had a great facility to divine the signs addressed to her, and to make herself understood by means of gestures by those with whom she was habituated to communicate, that fact may prove that by a just compensation, nature had endowed her with a remarkable instinct and penetration, but not destroy the presumptions, weighty, precise and consistent, which result from the other circumstances of the case; because these presumptions are yet farther justified by the fact that she appears to have made no use of writing, which ought, however, to have been one of the easiest and surest means of communicating with her relatives and friends."

"These presumptions, already so strong, become certain proofs when, in the most solemn circumstance of her life, at the epoch of her marriage with the Sieur Hardy in 1821, we see Therese Charlotte, in order to accomplish Garde des Sceaux (Keeper of the Seals,) to obtain an authorization to this effect, because of the impossibility in which she found herself to express her consent; and on the other side, obliged to employ an interpreter to transmit to the public officer the consent which she gave as is mentioned in the acte civile, (the civil part of the contract of marriage) by signs, showing her intelligence by conversation on all sorts of subjects, when it had been so easy for her to avoid all these difficulties by giving her consent in writing, if in fact she knew how to write."

"Hence there can be no doubt that at the epoch of her marriage with the Sieur Hardy, Charlotte Lange, then aged sixty-five years, did not know how to write, and it is difficult to admit that she could have learned since; moreover no proof has been offered on that point."

"It must be concluded, from all these facts, that evidently, if the acte called her testament, materially emanated from her, it is not the work of her intelligence, and that, in this point of view, it cannot be valid in the eye of the law."

The testament dated 7th August, 1834, and enregistered 8th August, 1836, was accordingly declared null. The plaintiffs, M. M. Desportes, having offered a liberality of 12,000 francs to the defendant and legatee Hardy, the latter acquiesced in the judgment; a fact that induces a suspicion that the decision of the court was not considered altogether conclusive, and that there was some possibility of a different ruling by a higher tribunal; or at least doubt enough to encourage the defendant to prosecute an appeal, if not bought off.

The reader will observe that, in this case, the general intelligence of Therese Charlotte Lange, and her competency to make her wishes distinctly known by signs, were not called in question. The only question was whether she could read and write with sufficient understanding to write her own will, with a full knowledge of its provisions and their effect. In this point of view, we are not prepared to dispute that the decision of the court was correct. It is probable, from the facts shown in the case, that though Therese Charlotte might have had some idea of the meaning of simple sentences, those about her and possessing her confidence, might have placed almost any instrument before her to copy as her own; she would have had to rely on their interpretation in signs for its purport.

We have, however, to object to the reasoning of the judgment before us on one or two points. It is by no means true that a Deaf Mute who has been taught to read and write, however expert he may be, finds writing "the easiest and surest means of communication with his relatives and friends." In most cases, on the contrary, the relatives and friends of an educated Deaf Mute find it much easier to learn to communicate with him by signs, than to suffer the tediousness and other inconveniences of having to write every communication. And there are few Deaf Mutes from birth, however well educated, who do not understand signs skillfully made, more easily and readily than writing.

We may further remark that a Deaf Mute who uses written language so imperfectly that he prefers to express himself by signs, may yet have a fair idea of the meaning of what he reads or copies. Whether this last was the case with Charlotte Lange, the evidence before us does not show.

Under this decision, and others of the same tenor, it seems that, in France, an uneducated or imperfectly educated Deaf Mute cannot make a valid will at all. As it is certain that there are some uneducated, and many partially educated, Deaf Mutes who are perfectly competent to manage their own affairs, and as fully aware of the nature and effects of a testament as illiterate speaking persons generally are, it must be considered as a defect of the law, if they are, by consequence of the formalities exacted, precluded from disposing by will of property perhaps acquired by their own industry.

SIGNIFICANCE

Many of the early students at the First American School for the Deaf were trained to be teachers and ministers and went on to establish new schools. During the remainder of the nineteenth century, schools for the deaf proliferated across the United States. Thomas Gallaudet's son Edward became a teacher of the deaf and established the world's first college for deaf students in 1864. Originally called the Columbia Institute, it was renamed Gallaudet College in 1894, in honor of Thomas Gallaudet, the founder of deaf education in America. In 1986, the name was changed once again, to Gallaudet University.

At an international congress for educators of the deaf held in Milan, Italy, in 1880, a decision was made to discontinue all forms of sign language in deaf education and to mandate that all students be taught to speak and to become proficient at lip-reading. This movement was called Oralism. Gallaudet and the American educators strongly disagreed with this philosophy and felt that oral language should be offered as an educational component, but should not be the predominant teaching method. Gallaudet College continued to use ASL as a primary teaching method.

The National Association for the Deaf (NAD) was founded in 1880, partly in reaction to the rise of Oralism. As the deaf culture began to develop coherence in America, there was growing concern that the tradition and richness of American Sign Language might be lost by the growth of Oralism.

There are a range of cultural and physiological terms associated with deaf culture. The word deaf is a clinical and medical term for profound or complete absence of hearing. To be deafened means to lose one's hearing after having been able to hear for some period of time. People who are profoundly deaf have very little hearing and may only be able to discern a small amount of environmental sound. Those who are hard of hearing have varying abilities to hear sound and language. The term deaf is a cultural, linguistic, and political one, and it relates to a community that uses ASL as its primary language.

Deaf culture is an expression of enormous pride in the richness and diversity of the deaf population that uses American Sign Language as a primary communication medium. A seminal moment in the development of American deaf culture occurred in 1988 at Gallaudet University, with the Deaf President Now protest movement (DPN). At that time, a new president of the university was to be elected. Among the three top candidates for the position, only one, Dr. Elisabeth Zinser, was a hearing individual. She had the least experience with deaf culture and was the least familiar with ASL. She was elected president by the University's Board of Trustees. Before her election, the school had only had presidents who were unable to hear. For a week after the election, the students refused to attend classes and staged a protest in which they demanded that a deaf president replace Dr. Zinser, and that the board membership be changed to include a fifty-one percent majority of deaf members. Those demands were met, and Gallaudet University increased the visibility of deaf persons around the world.

There is a predominant assumption among the hearing that ASL is an exact replica of spoken English. In fact, ASL is its own language, with a semantic, grammatical, and structural complexity equivalent to that of any spoken language. ASL does not simply finger spell words, it has a wealth of idiomatic gestures that express abstract concepts, phrases, and ideas. Sign languages are culturally based, and vary from country to country. Historically, deaf children have attended residential schools, where much of deaf culture and language are transmitted. Members of deaf culture do not typically view themselves as differently abled or handicapped and often prefer to remain within their own subculture for most social interactions.

FURTHER RESOURCES

Books

Carroll, Cathryn. Laurent Clerc: The Story of His Early Years. Washington, D.C.: Kendall Green Publications/Gallaudet University Press, 1991.

Lane, Harlan, and Francois Grosjean, eds. Recent Perspectives on American Sign Language. Hillsdale, N.J.: Lawrence Erlbaum Associates, 1980.

Marschark, Mark, and Patricia Elizabeth Spencer, eds. Oxford Handbook of Deaf Studies, Language, and Education. New York: Oxford University Press, 2003.

Meier, Richard P., Kearsey Cormier, and David Quinto-Pozos, eds. Modality and Structure in Signed and Spoken Languages. Cambridge, U.K.: Cambridge University Press, 2002.

Neimark, A. E. A Deaf Child Listened: Thomas Gallaudet, Pioneer in American Education. New York: William Morrow, 1983.

Periodicals

Peet, Harvey P. "Analysis of Bonet's Treatise on the Art of Teaching the Dumb to Speak." American Annals of the Deaf and Dumb 3 (1851): 200-211.

Peet, Harvey P. "Elements of the Language of Signs." American Annals of the Deaf and Dumb 3 (1851): 129-161.

Peet, Harvey P. "Words Not 'Representatives' of Signs, But of Ideas." American Annals of the Deaf and Dumb 11 (1859): 1-8.

Pittman, Paula, and Dixie Snow Huefner. "Will the Courts Go Bi-Bi? IDEA 1997, the Courts, and Deaf Education." Exceptional Children 67 (Winter 2001): 187-198.