General Attitude of the Law towards the Deaf
After examination of the question of how long the deaf are to be an element of the population, our discussion turns to their position at present as an actual part of society. The first relation to be considered is that of the state to them.
The state acts on men through the law, and in the law is represented not only its authority, but its attitude as well towards the problems that confront society, including the treatment of the various elements of its population. In this chapter it is our purpose by a study of the law in respect to the deaf to discover the attitude of the state towards them and the treatment which it has accorded them.
Generally in ancient and even in more modern days the deaf, especially the congenitally deaf without education, have been held in the eyes of the law more or less as though they were an abnormal element in the state, at times being regarded as though they were of defective minds, and now and then being considered practically as idiots. Though there was usually meditated no unduly harsh treatment of the deaf, they were for the most part deemed incapable of performing the full duties of citizenship, certain of the rights that belonged to their fellowmen were denied to them, and they were held in considerable degree in what amounted to legal bondage. It was only in the course of time in most countries that the law came to look upon the deaf differently, to regard them more as normal persons, and to grant them in greater measure the rights of other men.[61]
In America the attention of the law has been directed to the deaf both by legislation relating to them, and by court decisions affecting them. In addition, in the constitutions of a number of states, as we shall see, provision is made for institutions for the education of the deaf; and in one state, Mississippi,[62] a provision is found exempting the deaf from the payment of a poll tax. The law cannot be said to have concerned itself extensively with the deaf, but the light in which they have been viewed has been indicated fairly clearly. Judicial dicta and opinions have been of less frequency and importance than legislation, and have rather dealt with the mental capacity of the deaf in certain legal relations and proceedings, as in their responsibility for crimes, the making of wills, the appointment of interpreters, etc. Legislation itself has not often been engaged in providing for the deaf as a special class, beyond maintaining schools for the education of the young. Where this legislation has taken place, it may be said to be of three kinds. First, the deaf have been regarded as mentally deficient or incapable of certain civic acts, and discriminatory laws have been enacted. Next, the deaf have been thought to need special consideration or protection on the part of the state, and laws have been passed for the appointment of guardians or otherwise for their security or benefit. The third class of legislation is where the state bases its action upon the supposed weakness of the deaf, their "physical disability," as it is frequently termed, and here we have a series of what may be called negative benefactions, designed to make less hard the way of the deaf. Such special provision has consisted chiefly in the remission of taxes in certain instances or of some other form of more or less direct assistance.
Legislation Discriminatory respecting the Deaf
Legislation which may be termed discriminatory in respect to the deaf has really been of but slight extent.[63] In Georgia we find an enactment of 1840,[64] in which the deaf were to be regarded pro tanto as idiots, so far as concerned the managing of their estates, though this was in fact intended for their protection. In New Mexico a law has been enacted, forbidding those deaf by birth from making wills, unless their intention is declared in writing;[65] and in Louisiana a deaf man is incapable of acting as a witness to a testament.[66] In several states, as New York and Massachusetts, there have been enactments in regard to deaf-mute immigrants together with other classes who might be likely to become a public charge, with the exaction of bond as security.[67] In Georgia[68] there is an enactment in reference to various itinerant concerns which might leave deaf persons, as well as others, in the state as public charges.[69]
Legislation in Protection of the Deaf
Legislation of the second class, where the deaf are thought to require particular consideration or protection, has likewise been infrequent. The first instance is an enactment of Massachusetts in 1776,[70] relating to the appointment, on certain occasions, of guardians for the deaf, especially those deaf "from their nativity," together with other persons—which is probably the earliest statutory reference to the deaf in America. A later example is an enactment in Georgia in 1818,[71] and still in force, providing for the appointment of guardians, on somewhat the same order as that which we have indicated, for deaf and dumb persons incapable of managing their estates. In New Jersey in 1838[72] a law was enacted, forbidding deaf persons under seventeen years of age to be bound out as apprentices. In Ohio a statute also of 1838[73] provided for guardians for the deaf, and several modern statutes are somewhat of this nature. In Maine the deaf cannot be sent to the reform school.[74] In Arkansas[75] and Missouri[76] it is provided that the court may appoint guardians for deaf persons from fourteen to twenty-one years of age in case of the death of a parent. Of somewhat different character, but still for the protection of the deaf, is the enactment in several states, as Wisconsin[77] and Virginia,[78] where injury or abuse of the deaf is made a matter of special attention in the law.