PEET, Harvey Prindle, educator, b. in Bethle- 
 hem, Litchfielcl co., Conn., 19 Nov., 1794 ; d. in New 
 York city, 1 Jan., 1873. His early life was spent 
 on his father's farm, and by teaching in the district 
 
 school he earned means to procure his education. 
 After graduation at Yale in 1822 he became an 
 instructor in the asylum for the deaf and dumb in 
 Hartford, of which he was soon made superintend- 
 ent. In 1831 he was appointed principal of the 
 institution for the deaf and dumb in New York 
 city, which under his care became successful. He 
 resigned the principalship in 1868, but was emeritus 
 principal until his death. For fourteen years he 
 was president of its board of directors. Dr. Peet 
 received the degree of LL. D. from the University 
 of New York in 1849, and that of Ph. D. from the 
 National deaf-mute college in 1871. The want of 
 suitable elementary books for deaf-mutes led him 
 to prepare a series, which is now in general use, 
 entitled " Course of Instruction for the Deaf and 
 Dumb" (New York, 1844-'G). He also wrote 
 " Scripture Lessons for the Deaf and Dumb " 
 (1846) ; " Statistics of the Deaf and Dumb " (1852) ; 
 " Report on Education of the Deaf and Dumb in 
 Higher Branches" (1852); "Letters to Pupils on 
 Leaving the New York Institution for the Deaf 
 and Dumb " (1854) ; " Legal Rights, etc., of the Deaf 
 and Dumb " (Utica, 1856) ; " History of the United 
 "Hates of America" (New York, 1869); and con- 
 tributed articles on his specialty to the ' American 
 Journal of Insanity " and to the " American Annals 
 for the Deaf and Dumb." His son, Isaac Lewis, 
 educator, b. in Hartford, Conn., 4 Dec., 1824, was 
 graduated at Yale in 1845, and at the Union theo- 
 logical seminary in 1849. In 1851 he visited Europe 
 to study metho'ds of teaching deaf-mutes. On his 
 return in 1852 he was elected vice-principal of the 
 New York institution for the deaf and dumb, and 
 since 1867 he has been its principal. In 1881 he 
 went as the representative of all the American 
 institutions for the deaf and dumb to the Inter- 
 national congress in Milan, Italy. He has been 
 active in shaping the legislation of the state of 
 New York with regard to deaf-mute instruction, 
 and also secured provision for the instruction of 
 children under the age of twelve years. Columbia 
 gave him the degree of LL. D. in 1872. He has 
 written many reports, memoirs, and works on the 
 education of deaf-mutes. Another son, Edward, 
 educator, b. in Hartford, Conn., 28 May, 1826 ; d. 
 in New York city, 27 Jan., 1862, was graduated at 
 the University of New York in 1847. He then 
 visited France, and on his return studied law, and 
 in 1849 was chosen professor in the New York 
 institution for the deaf and dumb. He studied 
 theology at Union theological seminary, but never 
 preached. He was the author of text-books for 
 mutes. Another son, Dudley, physician, b. in 
 Hartford, Conn., 9 July, 1830; d. in New York 
 city, 18 April, 1862, was graduated at Yale in 1852, 
 studied and practised medicine in New York, and 
 became an instructor in the New York institu- 
 tion for deaf-mutes. He was the author of a 
 "Manual of Inorganic Chemistry for Students" 
 (New York, 1865), which was revised and enlarged 
 bv Isaac L. Peet (18681
 
 / 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES

 
 ON THE 
 
 LEGAL RIGHTS AND RESPONSIBILITIES 
 
 DEAF AND DUMB, 
 
 BY 
 
 HAEVEY P. PEET, LL.D. 
 
 PRESIDENT OF THE NEW YORK INSTITUTION FOR THE DEAF AND DUMB. 
 
 Reprinted from the Proceedings of the Fourth Convention. 
 
 RICHMOND, VA. 
 
 C H. WYNNE'S STEAM-POWER PRESSES. 
 185T.
 
 ON THE 
 
 LEGAL RIGHTS AND RESPONSIBILITIES 
 
 OF THE 
 
 DEAF AND DUMB. 
 
 THE questions involved in this subject are obviously of no small 
 importance, and it is remarkable that they have hitherto received 
 so little consideration from our profession, in America at least, and 
 that so little pertinent to the inquiry before us can be found in 
 English and American jurisprudence. Our statute books, except 
 in provisions for their education, are silent respecting the Deaf 
 and Dumb, and cases bearing on the questions submitted to us, 
 are rare in our law books. In the French, and perhaps in the 
 German works on the Deaf and Dumb, and on medical jurispru- 
 dence, the subject before us is more fully and satisfactorily dis- 
 cussed and illustrated, than it is in our own language. Some 
 foreign codes also, like the Roman Code of Justinian, embrace 
 positive enactments respecting the Deaf and Dumb. Though 
 what was law in Rome, or is law in France and Germany, is not 
 law in the United States ; still, as in the absence of positive 
 enactments, we have to be guided by the general principles of 
 justice and jurisprudence, it will be instructive and useful, as 
 well as interesting, to know what views of the several questions 
 before us, or involved in our subject, have been, after careful 
 research and mature deliberation, solemnly put forth in other 
 countries, or in other ages of the world. And the value of such 
 lights as may be shed on our subject from the labors of foreign 
 jurists will be the greater, that in the few English and Ameri-
 
 can cases we have, there seems to be little uniformity of prin- 
 ciple. Of statute law, relating to the legal rights and liabilities 
 of the Deaf and Dumb, we have found nothing,* and the com- 
 mon law remains to be settled. Let us hope that it will prove 
 fortunate that its settlement has been reserved for an age of 
 greater light and liberality of sentiment, and of juster views of 
 the peculiar condition of this exceptional class of persons. 
 
 We find but very little respecting the Deaf and Dumb in any 
 code of laws before the celebrated Code of Justinian, promul- 
 gated in the sixth century of our era, which, in later ages, 
 became the foundation of most of our modern European juris- 
 prudence. The law of Moses (the most ancient code extant) 
 imposes no disqualifications on the Deaf, and mentions them 
 only to forbid, in the name of Jehovah, those impositions on the 
 oo unfortunate to which their infirmities might incite the vicious or 
 jj the unthinking. "Thou shalt not curse the deaf, nor put a 
 >. stumbling block before the blind, but shalt fear thy God. I am 
 J| theLord."f 
 
 AfteiL a diligent search through the Oriental codes, the 
 
 earliest monuments we have of jurisprudence, very little was 
 
 ^ found relating to this class of persons, except among the laws of 
 
 the Hindoos. In the ordination of the Pundits, or code of 
 
 > Gentoo laws, whoever was "Deaf from his mother's womb," or 
 
 whoever was Dumb, was classed among the persons incapable of 
 
 inheritance. (Halked's translation of the Gentoo laws from the 
 
 . Persian and Sanscrit, London, 1776.) Though excluded from 
 
 o inheriting, they were not however left unprovided for, but the 
 
 % person who superseded them in the inheritance was bound to 
 
 2 support them ; in the language of the ordinance, to allow them 
 
 u clothes and victuals. Whether or not they were allowed to 
 
 3 
 
 * Since writing the foregoing, our attention has been called to the laws of 
 Georgia, which will be hereafter cited. 
 
 f Leviticus, xix. 14. It is somewhat remarkable that the law of Moses does 
 not specify deafness and dumbness among the blemishes which disqualified the 
 sons of Aaron from serving in the priest's office. (See Leviticus, xxi. 17-21.) 
 Blindness, lameness, personal deformity, and some other defects were specified; 
 but if the deaf, or even the idiotic and insane were excluded, it was by implica- 
 tion, not by direct precept. Was this omission because these infirmities were^ 
 less common in those days than they have become in later times, or because the 
 mere want of intelligence would sufficiently prevent the Deaf Mute or idiot from 
 claiming the priest's office? 
 
 451782
 
 6 
 
 marry, does not appear, but as the code provides that the sons 
 of all those who are excluded from the inheritance, may, if free 
 from all objection, inherit the share to which their parent would 
 be entitled, it is possible that the Dumb, or those "Deaf from 
 their mother's womb" were not positively interdicted from 
 marrying. 
 
 It is usually taken for granted that, under the laws of Lycur- 
 gus, Deaf-Mute children shared the fate of the sickly and 
 deformed ; but this may be doubted. The institutions of Lycur- 
 gus were designed to form a nation of soldiers, and all children 
 who were judged incapable of becoming soldiers, or mothers of 
 soldiers, were ruthlessly exposed to death ; but it does not follow 
 that Deaf Mates merely as such, fell under this inhuman doom. 
 Seldom deficient in animal courage, and often excelling in that 
 quickness of eye and hand so valuable in a hand to hand strug- 
 gle, Deaf-Mutes, though not adapted for scouts or sentinels, still 
 might have stood in the foremost ranks of the phalanx, undis- 
 tinguishable in battle from the best soldiers who possessed hear- 
 ing and speech. 
 
 We can, in the absence of any further positive information as 
 to the laws of the ancients, easily divine what the general prac- 
 tice must have been, by considering what is, at this day, the 
 social condition of most uneducated, and of many partially 
 educated Deaf-Mutes. Unable to communicate with any but 
 their immediate relatives, and more intimate acquaintances, 
 knowing but little of what is going on in the community, and 
 ignorant of statute laws, and of legal forms and proceedings, 
 their degree of intelligence very seldom correctly appreciated, 
 or their rights understood, they remain for life practically in the 
 condition of children or minors. If affectionate and docile, 
 they remain in the family, mere drudges treated we are happy 
 to believe, in most cases humanely and affectionately, but seldom 
 receiving that equitable reward for their labor, or equitable 
 division of inherited property, which could not be withheld from 
 one knowing, and able to claim publicly his rights. If on the 
 contrary, they grow up to be perverse, suspicious, and of un- 
 steady habits, the natural results of injudicious indulgence, they 
 often become vagrants, depending for support on the compassion 
 of their acquaintances, or an occasional days' work, eked out by 
 beggary and theft. In the former condition undoubtedly the
 
 happiest, the law never has occasion to notice a Deaf Mute, 
 except in rare cases, when he may be the legal inheritor of 
 property so considerable, that his self-elected guardians may 
 attempt to secure it by means which other relatives may think it 
 a promising speculation to call in question. In the latter case, 
 his transgressions, though we shall hereafter cite some terrible 
 exceptions, are seldom greater than those of idle boys, and are, 
 for the most part, overlooked through compassion for his infirmi- 
 ties. Cases sometimes occur in which uneducated Deaf Mutes 
 evince an ability to manage their own affairs, and even acquire 
 property by their own industry; but this is rare. The greater 
 number remain by general consent, as is the case with idiots, in 
 a state of perpetual tutelage. Hence we may suppose that, in 
 those times when a system of laws and jurisprudence is slowly 
 forming, while as yet, each little community in the State deals 
 with rare or novel cases according to the instincts of the 
 national common sense, Deaf Mutes would be practically treated, 
 not according to any arbitrary rule, made or intended to be 
 made for the greater number of cases, and, of course, unjust to 
 the exceptional cases, but according to the degree of intelligence 
 actually manifested in each individual case. 
 
 Though the principle just stated is evidently in accordance 
 with reason and justice, still, in its practical application, there is 
 great room for error. The magistrate before whom such cases 
 might be brought, is seldom well qualified to judge of the actual 
 degree of intelligence of the Deaf Mute, and is usually unable 
 to interrogate him even as to his actual wishes. It was proba- 
 bly the occurrence of cases in which, by taking the represen- 
 tations of interested parties as to the degree of intelligence, or 
 even the actual purpose of the Deaf Mute, injustice had been 
 done, that prompted the provisions of the Code of Justinian. 
 In this celebrated code, the Deaf and Dumb from birth, are, 
 without exception, and without regard to the degree of their 
 intelligence, condemned to a perpetual legal infancy. The code 
 assumes throughout that Deaf Mutes from birth are incapable of 
 managing their own affairs; in this respect being considered as 
 on a footing with the insane, and those who were incapable of 
 managing their own affairs through the affliction of permanent 
 disease ; and hence, like them, were to be placed under guardian- 
 ship. Mente captis, et surdis, et mutis, et qui perpetuo morbo
 
 laborant, quia rebus suis superesse non possunt, curatores dandi 
 sunt. (Digest, lib. i, tit. xxii, De Curatoribus, 4.) 
 
 Degerando* observes that the Roman laws, before the time 
 of Justinian, while they preserve an absolute silence with regard 
 to the Deaf and Dumb, speak often of those who are deaf with- 
 out being dumb, or dumb without being deaf; because, no doubt, 
 persons thus afflicted, being able to manifest, either by speech or 
 by writing, their intelligence and their wishes, still are unable to 
 comply with the legal forms prescribed for those who both hear 
 and speak, and therefore stand in need of exceptional provisions 
 on the part of the lawgiver. Those who were both deaf and 
 dumb were left, as we have already remarked, to be treated 
 according to the discretion of the magistrate, in view of the intel- 
 ligence they might manifest. The probability is, that the Code of 
 Justinian did but reduce to express enactment and to the form 
 of a general rule, what had previously been the usual practice. 
 
 The celebrated code in question furnishes, in its classification 
 of the Deaf and the Dumb, a striking proof of the imperfect and 
 erroneous notions then prevalent respecting Deaf Mutes. The 
 legislator establishes five classes : 1. The Deaf and Dumb with 
 whom this double infirmity is from birth : 2. The Deaf and Dumb 
 with whom this double infirmity is not from birth, but the effect of 
 an accident supervened in the course of life : 3. The Deaf person 
 who is not dumb, but whose deafness is from birth : 4. The in- 
 dividual who is simply deaf, and that from accident : 5. Finally, 
 he who is simply dumb, whether this infirmity be in him con- 
 genital, or the effect of an accident. It is hardly necessary, in 
 this age, to observe that the third class existed only in the ima- 
 gination of the legislator. To this point we shall again recur. 
 
 Different provisions were made to suit the cases of each of 
 these five classes. We cite the original on the first class : 
 
 " Discretis surdo et muto, quia non semper hujusmodi vitia 
 sibi concurrent, sancimus, si quis utroque morbo simul laboret, 
 id est, neque audire, neque loqui possit et hoc ex ipsa natura 
 habeat, neque testamentum facere, neque codicillos, neque fidei 
 commissum relinquere, neque mortis causa donationem celebrare 
 concedatur, nee libertatem, sive vindicta, sive alio modo impo- 
 
 * De 1'Education des Sourds Muets de maissance, I. 24.
 
 9 
 
 nere ; sidem lege tarn masculos quam feminas obedire imperan- 
 tes." Code, lib. vi, tit. xxii, 10. 
 
 Thus we see, that while the faculty of acquiring property, 
 whether by inheritance or otherwise, was not denied to the Deaf 
 and Dumb, they were debarred from that full control of their 
 property conceded to other men. It appears, from the provision 
 before cited, that they could only buy and sell by the aid of a 
 curator, or guardian ; and the law just cited denies to them the 
 power of altering the descent of property, or of making a gift, 
 even with the assistance of a curator, in any of the modes re- 
 cognized by the Roman law. They could not make a will or a 
 codicil ; nor create a trust estate, nor make a donation contin- 
 gent on the death of the donor, nor emancipate a slave. But to 
 the second class, those, to wit, who were deaf and dumb by acci- 
 dent, all the rights were restored that were denied to the first 
 class, provided they were able to manifest their wishes by 
 writing. 
 
 " Ubi autem et hujusmodi vitii non naturalis, sive masculo, 
 sive feminse accidit calamitas, sed morbus postea superveniens et 
 vocem abstulit et aures conelusit : si ponamus hujusmodi perso- 
 nam literas scientem ; omnia quae priori interdiximus, haec ei sua 
 manu scribenti permittimus." 
 
 It is worthy of remark, that only Deaf Mutes of this second 
 class are supposed capable of receiving instruction. Cases, we 
 cannot doubt, occurred in the Roman times, as well as in our own, 
 in which persons who had learned to read and write in child- 
 hood, subsequently became deaf, and in consequence dumb. It 
 was doubtless to meet such cases that the law before rs was 
 framed. But as in those times no cases were known of persons 
 deaf and dumb from birth becoming able to read and write, (lit- 
 teras scientem,} the legislator does not even provide for the pos- 
 sibility of one of this class receiving instruction in letters. It 
 was then held, even by the wise and learned, that Deaf Mutes 
 from birth were wholly incapable of instruction : indeed, the 
 futility of attempting to instruct them seems to have become 
 proverbial ; and it may possibly have been considered by the 
 authors of the Roman Code, that an exception of this kind in 
 favor of this class of persons, might lead to attempts to pass 
 their mere mechanical writing, from a copy before them, the
 
 10 
 
 purport of which they knew not, for a valid expression of their 
 own intelligent wishes. 
 
 It seems to us strange that the authors of this code should 
 * suppose the dumbness of Deaf Mutes to be a direct consequence 
 of disease, and not, as we now know it to be, a mere conse- 
 quence of deafness. " Sed morbus et vocem abstulit et aures 
 conclusit." This supposition appears more prominently in the 
 section of the law relative to the third class those, to wit, who 
 were supposed deaf from birth, yet able to speak. 
 
 " Sin autem infortunium discretum est, quod ita raro contin- 
 git ; et surdis, licet naturaliter hujusmodi sensus variatus est, 
 tamen omnia facere et in testamentis, et in codicillis, et in mor- 
 tis causa donationibus, et in libertatibus, et in omnibus aliis per- 
 mittibus. Si enim vox articulata ei a natura concessa est, nihil 
 prohibet eum omnia qua voluerit facere." 
 
 Here the legislator supposes a class of persons who are deaf 
 from birth, but who, notwithstanding, have received from Nature 
 the gift of speech ! He indeed adds that this rarely happens, 
 (quod ita raro contingit ;) but this mere legislating for a case 
 which we now know cannot possibly -occur, strikingly shows how 
 wide of the truth were then the notions of even the learned and 
 profound concerning the Deaf and Dumb. In vain had Pliny, 
 (as the prince of Greek philosophers had done before him,) in a 
 work of high reputation, distinctly stated, that "The man to 
 whom the sense of hearing is denied, is deprived by that defect 
 itself of the usage of speech; there is no person deaf from 
 birth who is not also dumb."* The popular opinion that deaf- 
 ness and dumbness were distinct defects, usually, indeed, found 
 united, but sometimes the one, even if from birth, existing with- 
 out the other, is here found to influence the legislation of an 
 empire embracing nearly all the then civilized world. 
 
 We cannot suppose the counselors of Justinian to have been 
 ignorant of the fact, shown by constant experience, that chil- 
 dren learn language from their elders, through the ear ; but 
 there seems to have been a prevalent idea, that not merely the 
 faculty of learning to speak, but speech itself, was a gift of Na- 
 ture, inherent in man as a reasonable being, and that, as the 
 first men possessed language without having learned it from 
 
 * Pliny, Hist. Nat. x. G9.
 
 11 
 
 elders, as they had no elders ; so children, whose organs of 
 speech were not defective, might naturally possess speech, 
 though they had never heard the speech of others. It is, 
 however, remarkable, that the Roman lawgiver should sup- 
 pose that this natural gift of speech would be the very speech 
 of his own countrymen ; else, supposing a deaf child to speak, 
 how should it be understood ? If it be supposed that children 
 may speak without having heard the speech of others, it is obvi- 
 ously more natural to suppose, with the old Egyptian king, 
 Psammetichus, that they would speak the language of some pri- 
 mitive race of men, than that they would speak a language intel- 
 ligible to those around them. 
 
 This third regulation is terminated by an explication which is 
 itself very curious. The lawgiver says : " Quia scimus quos- 
 dum jurisperitos, et hoc subtilius cogitasse, et nullum esse expo- 
 suisse, qui penitus non exaudiat, siquis supra cerebrum ejus 
 loquatur, secundum quod Jubentio CELSO placuit." 
 
 From this we learn, that it was in those days held by some 
 that all Deaf Mutes might be made to hear, (and it seems to 
 have been assumed that to hear must be to understand,) by 
 speaking to them in a certain manner over the top of the head. 
 It is probable that, in many cases of partial deafness, this opin- 
 ion was confirmed by experiment ; but we may safely assert 
 that, though persons who had become too deaf to distinguish 
 words at the ordinary distance of conversation might recognize 
 them when thus spoken, Deaf Mutes from birth if they heard 
 the words at all would be sensible of only a confused noise. 
 A contrivance that might enable a Deaf Mute, whose deafness 
 was not total, to hear words, would no more enable him to under- 
 stand them than a pair of spectacles, or the couching of a cata- 
 ract, would enable one to read who had not previously learned to 
 read. In some few cases of partial deafness, speech might, with 
 pain and labor, be taught by often speaking to the Deaf Mute in 
 the mode under consideration ; and in a greater number of cases, 
 it might enable the patient to guess tolerably well at words 
 already known ; but in far the greater number of cases, the de- 
 gree of hearing thus procured, if any, would be much too feeble 
 and indistinct, to be of use for instruction or conversation by 
 vocal speech. 
 
 AVe are not to suppose, however, that the annexing this obser-
 
 12 
 
 vation to the law before us, proceeded from an idea that some 
 Deaf Mutes from birth could be taught to speak by speaking to 
 them over the top of the head. Nothing of the kind, so far as 
 we know, was ever accomplished, or even attempted, in Roman 
 times. It is to be regarded as only the manifestation of another 
 phase of the popular notions respecting speech. It is natural 
 to believe that the furniture of the minds of our neighbors, 
 and the texture of their thoughts, are like those of which we are 
 ourselves conscious as natural, and as erroneous, as to believe 
 that the earth is at rest, while the heavenly bodies perform daily 
 revolutions round it. Hence, as we are not conscious of reflect- 
 ing and willing otherwise than by the aid of words, of an in- 
 ternal speech, we conclude that all rational beings must pos- 
 sess a like internal speech. And our Roman lawgiver, who so 
 obviously makes the possession of verbal language a test of in- 
 telligence, supposed that this faculty of internal speech might, 
 in cases where the ears are closed, be reached through the top 
 of the head. 
 
 The general principle that runs through the provisions and 
 mistakes of Justinian's code, evidently is, that there can be no 
 valid contract made, or assent given, except by means of words, 
 spoken or written. The Deaf Mute, who could only make his 
 will known by gestures, was treated like a child, who might in- 
 deed buy and sell in the markets, but Avas interdicted from such 
 grave acts as changing the descent of lands, or emancipating a 
 slave. This interdiction is repeated later in the Institutes : 
 " Item surdus et rautus non semper testamentum facere possunt ; 
 utique autem de eo surdo loquimur, qui omnino non exaudit, non 
 qui tarde exaudit ; nam et mutus is intelligitur, qui eloqui nihil 
 potest, non qui tarde loquitur. Ssepe enim literati et eruditi 
 homines variis casibus et audiendi et loquendi facultatem amit- 
 tunt. Unde nostra constitutio etiam his subvenit, ut certis casis 
 et modis secundum normam ejus possint testari aliaque facere, 
 quae eis permissa sunt."* 
 
 Under the reign of a code of laws so precise and formal, some 
 special provision would have been necessary to give legal effect 
 to the wishes of those who, though profoundly deaf, were still 
 abla to speak intelligibly, but not to write. 
 
 * Instit. lib. ii, tit. xii, quibits non est perm. fac. test.
 
 13 
 
 Disqualifications similar to those of the Code of Justinian were 
 established by the laws of the feudal monarchies of Europe ; and 
 in some cases they even went beyond the Romans, by declaring 
 a deaf and dumb person incapable of succeeding to a fief, or 
 other inheritance. The Code of Justinian did not debar a Deaf 
 Mute from the succession, nominally at least, to an inheritance, 
 but only incapacitated him from changing the descent, so that it 
 passed to the next legal heir at his death ; but the codes or cus- 
 toms of some medioeval realms of Europe (like the Hindoo Code) 
 set aside the Deaf Mute altogether, and vested the inheritance 
 in the next heir at once. Yet, we remark, with some surprise, 
 that Carpzovius, in his Definitiones Forensas ad Constitutiones 
 Electorates Saxonicas, etc. (1663,) after laying down the defini- 
 tion, " Mutus et Surdus vel aliter imperfectus in feudo non suc- 
 cedit," adds, " De feudo tamen novo mutum et surdum vel aliter 
 imperfectum Dominus bene investire potest." It is easy to see 
 why a Deaf Mute should be judged incapable of succeeding to a 
 fief, the holder of which was not only bound to military service 
 as a leader of troops, but was usually in his own territories a 
 civil and criminal judge ; but we should suppose the same reasons 
 would oppose the conferring a new fief on a person in that con- 
 dition. The contradiction may, perhaps, be reconciled, by sup- 
 posing that the former was the general rule, and the latter 
 designed to operate as a rare exception in favor of Deaf Mutes 
 of noble race, who may have displayed an intelligence greater 
 than is usual in persons so afflicted ; but this exclusion of Deaf 
 Mutes from certain rights of inheritance does not appear to have 
 been general, else the provisions to prevent this class of persons 
 from alienating property, would have been nearly if not quite 
 supererogatory. 
 
 Having thus passed in review all that we have found in ancient 
 jurisprudence respecting the Deaf and Dumb, we will now turn 
 our attention to the light in which they have been viewed under 
 the common law of England. The Roman civil law is still of 
 great authority in Continental Europe, and the foundation of 
 most of their present codes ; but the common law of England is 
 a distinct and different system, lying at or constituting the 
 foundation of the jurisprudence of England and of the United 
 States. 
 
 In the treatise of Glanville, supposed to be the first elemen-
 
 14 
 
 tary work on the common law, written in the reign of Henry II., 
 towards the close of the twelfth century, nothing is said respect- 
 ing the legal rights, disqualifications or responsibilities of the 
 Deaf and Dumb. Though this work is but a very loose and 
 general summary of the law of England, as it then existed, it is 
 presumed that the law made no provisions respecting this class 
 of persons ; for in the Norman Code, which, after the Conquest, 
 made part and parcel of the law of England, but four impedi- 
 ments to the succession of heirs are recognized Bastardy, Pro- 
 fession of Religion, Forfeiture, and incurable Leprosy. (Le 
 Grand Custum de Norm. 27.) Nearly a century after Glanville, 
 in the reign of Henry III., appeared the more elaborate and 
 learned work of Bracton on the Laws and Customs of England; 
 and, in this treatise, the Deaf and Dumb are referred to as a 
 class of persons who are not entitled to the same rights and 
 privileges as other subjects. It would appear from Bracton, 
 that they could not inherit as heirs, or participate in the inherit- 
 ance. (Bracton, lib. v, De Exceptionibus, cap. 26, 3, fol. 430 ; 
 cap. 20, 2, fol. 421.) He draws a distinction, however, be- 
 tween those who are Deaf and Dumb from birth, and those who 
 have become so through accident or other cause, after having 
 had the use of their natural faculties ; and he says, that those 
 who can hear, though with difficulty, and those who have merely 
 some impediment of speech, are not to be considered as under 
 the legal disabilities existing in the case of the Deaf and Dumb 
 from birth. Those, he says, who are naturally Deaf and Dumb 
 cannot acquire any thing, or enter into any obligation or con- 
 tract ; for as they cannot hear what is said to them, or express 
 their will, they cannot give their consent to anything. Those, 
 however, who have been able to hear or speak, but have lost the 
 power by accident, sickness or other cause, he places in a very 
 different position. In their case, he says, it is to be ascertained 
 who or what they were before the misfortune came upon them ; 
 because if they could speak and hear, and give consent at the 
 beginning, they retain all the acquisitions (property) they may 
 have acquired, and may continue to acquire through their guar- 
 dians, to be appointed ; but should not be allowed, without great 
 care and caution, to grant or transfer to another what they pos- 
 sess. And he then declares, that an inquiry must be instituted 
 by the court, for the purpose of ascertaining and determining
 
 what shall be necessary for maintaining such persons, according 
 to their quality and the quantity of their estate. 
 
 We will give the principal passage upon the subject from 
 Bracton in his own words, which will be the more interesting, as 
 it shows that the law did not at that time admit, or rather it 
 denied, the possibility of the Deaf and Dumb expressing their 
 will or consent, even by signs ; a state of things not remarkable, 
 when it is remembered that the learned Spaniard Vives, nearly 
 two centuries later, questioned, merely from the inherent in- 
 credibility of the thing in his view, the statement of the Heidel- 
 burg Professor Agricola, that he had seen a young man, born 
 Deaf and Dumb, who had learned to understand writing, and to 
 note down his whole thought. (De Anima of Vives, lib. ii, cap. 
 De Discendi Ratione, and see De Inventione Dialecticae of Agri- 
 cola, lib. iii.) The passage from Bracton is as follows : 
 
 " Competet autem tenenti exceptio peremptoria ex persona 
 petentis, propter defectum naturae ; ut si quis fuerit surdus et 
 mutus naturaliter, si quis omnino loqui non possit nee audire, 
 non tamen si tarde audiat, vel loqui fuerit aliquantulum impedi- 
 tus. Et talis cum naturaliter surdus fuerit et mutus, acquirere 
 non potest omnino, et cum omnino audire non possit nee omnino 
 loqui, voluntate et consensum exprimere non potest, nee verbis, 
 nee signis. Naturaliter dico, hoc est a nativitate, sicut dicitur 
 de cseco, qui caecus fuit a nativitate, quia si hoc aliter alicui 
 evenerit a casu, inquirendum erit qualis fuerit ante hujusmodi 
 infortunium, quia si loqui potuit ab initio, et audire et consentire, 
 per se et per procuratorem acquiret, et acquisita retinet, sed 
 tamen de facili non transfert ad alium acquisita sed cum surdus 
 et mutus naturaliter acquirere non possit, per officium judicis in- 
 venienda sunt ei necessaria quoad vixerit, pro qualitate personae, 
 et haereditatis quantitate, si haeres esse debuit, et si semel autori- 
 tate curatoris acquisieret, si fuerit inde ejectus recuperabit per 
 assisam, sicut minor." 
 
 Bracton had carefully studied the Code of Justinian, and it is 
 a striking proof of his intelligence and observation in that early 
 age, that he adopts but two of the classifications of the Roman 
 lawyers, viz : those with whom this infirmity is from birth, and 
 those with whom it is not from birth, but the effects of an acci- 
 dent supervened in the course of life. He does not repeat the 
 absurdity of the Roman Code of the possibility of the faculty
 
 16 
 
 of speech in those who continue deaf from birth ; nor class as 
 disqualified persons those who are merely deaf, or those who are 
 only dumb an omission not accidental ; for a great part of 
 Bracton's work is a mere transcript of Justinian, word for word. 
 His rejection, therefore, of the three last classifications of the 
 Roman lawgiver, was evidently deliberate and designed. He 
 speaks invariably of those who are both Deaf and Dumb, and is 
 careful to point out that a person is not to be included in that 
 class, because he has a difficulty in hearing, or an impediment in 
 his speech. 
 
 In the next reign, that of Edward I., appeared the work de- 
 nominated Fleta, which was a mere appendage to Bracton. The 
 writer of this treatise, who is unkown, for it takes its name from 
 a fact stated in the preface, that it was composed in the Fleet 
 prison, puts the Deaf and Dumb from birth in one general classi- 
 fication with natural fools, the mad, and those who are afflicted 
 with general leprosy ; and refers to them as an entire or whole 
 class, who, from their natural defect, cannot acquire nor alienate, 
 because they cannot give a legal consent; but who, from their 
 inability to manage their own affairs, may have guardians ap- 
 pointed over them,, and may acquire property by their guardian ; 
 but the guardian, it seems, had no power to alienate the estate 
 or property of such wards. " Competit etiam exceptio tenenti 
 propter defectum naturae petentis, vel si naturaliter a nativitate 
 surdus fuerit, aut mutus, tales enim adquirere non poterunt nee 
 alienare, quia non consentire, quod non est de tarde mutis vel 
 surdis, quibus dandi sunt curatores et tutores cum ex casu talis 
 segritudinis de rebus propriis disponere nesciverunt, et tales per 
 procurators adquirere poterunt, sed non legitime alienare." 
 (Fleta, lib. vi, cap. 40, 2.) 
 
 As the feudal law stood in the time of Bracton and Fleta, 
 the custody of idiots, under which were included the Deaf and 
 Dumb from birth, or those who became deaf and dumb in the 
 course of life, was given to their feudal lords ; that is, where 
 they had landed property, the guardianship of their person and 
 the possession of the estate was vested in their lord, the title or 
 fee remained in them until their death, and passed at their death 
 to the next heir in the order of succession ; but during their 
 lifetime the possession of their estate, as well as of all lands 
 or hereditaments which might come to them during their lives
 
 17 
 
 by purchase or descent, was vested in the lord of the fee as their 
 legal guardian. In consideration of the enjoyment of their 
 estate, he was obliged to support them according to their 
 quality and the quantity of their property; but beyond what 
 was necessary to maintain them, which was ascertained by a 
 judicial inquisition, the rents and profits of their estate during 
 their lifetime went to and were enjoyed by him as his exclusive 
 perquisite or right. (Fleta, lib. i, c. 11, 10 ; Dyer, 302 ; 
 Huit, 17 ; Noy, 27.) 
 
 Apart from the injustice of giving to the feudal proprietor 
 or lord paramount all the benefits and profits of the estates 
 of those who were disabled from taking charge of them, except 
 what was necessary for the support of his ward, this regulation 
 led to a serious train of abuses, It held out to those grasping 
 and unscrupulous proprietors the temptation to possess them- 
 selves of estates upon the presumed want of capacity in the 
 natural heirs ; and though the law required that the want 
 of natural capacity should be determined by a judicial investi- 
 gation, this precautionary measure proved inadequate to restrain 
 the powerful barons from obtaining the control of estates upon 
 slight and insufficient grounds. Not only was this the case, 
 but the estates were shamefully mismanaged, injured in value, 
 or prodigally wasted ; it being an object with these temporary 
 possessors to get out of the estate as much as they could while 
 they had the control. These abuses went on unconnected, 
 until a monarch came upon the throne who had both the will 
 and the capacity to cope with these feudal tyrants, and restrain 
 them in their course of oppression and injustice. Among the 
 many reforms which distinguished the important reign of Ed- 
 ward I, was the passage of a law abolishing this feudal privilege, 
 and making it a part of the king's prerogative to have the 
 custody of the estates of those who, from want of natural 
 capacity, were incapable of managing them. From a passage 
 in Britton, cap. 16, Beverly's case, 4 Coke, 125, this may 
 have been originally the common law ; and the right of pos- 
 sessing themselves of such estates may have been an assump- 
 tion and encroachment on the part of the barons, like many 
 of the feudal privileges which they claimed, and had the power 
 to enforce in that age of baronial supremacy. But the remarks 
 about it in Fleta, (lib. 6, 10,) indicate that this statute was 
 
 9
 
 18 
 
 an organic change in the law, and not merely declaratory of 
 it. That it was administered with uprightness and vigor, is 
 to be assumed from the manner in which the laws were main- 
 tained and enforced during the reign of this powerful, vigilant 
 and energetic monarch. Whether it had fallen into disuse 
 during this turbulent reign of his feeble successor, or whether 
 its provisions were not regarded as sufficiently explicit, we are 
 unable to say, as the statute is now lost; but in the reign 
 of Edward III, a new law was passed, declaring that the king 
 should have the custody of the lands of natural fools, taking 
 the profit of them without waste or destruction, and should 
 find them in necessaries ; and that after the death of such idiot, 
 he should render the lands to the right heirs, and that they 
 should not alien their lands, nor should their heirs be disin- 
 herited. (17 Edw. Ill, stat. i, c. 8.) Lord Coke, in inter- 
 preting this statute, declared that it applied only in the case 
 of idiots a nativitate, (Beverly's case, 4 Coke, 127.) It has 
 been shown by the quotation from Fleta, that the Deaf and 
 Dumb from birth were regarded by the law as idiots; and had 
 the law continued so to regard them, without qualification or 
 exception, it would have been productive of endless absurdities, 
 and led in many instances to the grossest injustice. But it is 
 one of the chief excellencies of the common law, that unlike the 
 Roman civil law, it is not a positive code of definitions, but 
 adapts itself to the progress of knowledge, rejecting any ab- 
 surdity that has grown out of the ignorance of the past, and 
 recognizing as its principle and practice whatever becomes 
 apparent in a more enlightened condition of society. 
 
 How loosely the common law, or the expounders of it, de- 
 fined, even two centuries later, what was understood in law 
 as an idiot, will appear from Fitzherbert's Natura Brevium, 
 written in the reign of Henry VIII. An idiot, says this writer 
 is one that " cannot number twenty pence, or tell who was his 
 father or mother, or how old he is, &c., so that it may appear 
 that he hath no understanding or reason what shall be for his 
 profit or his loss. But if he have such understanding that he 
 knows and understands his letters, and can read by teaching or 
 information of another man, then it seemeth he is not a sot nor 
 a natural idiot." (F. N. B. 233, B.) A definition which 
 Lord Tenterden characterized as absurd, or repugnant to com-
 
 19 
 
 mon sense ; "for," said that eminent judge, "as to repeating 
 the letters of the alphabet, or reading what is set before him, a 
 child of three years may do that." (1 Dow. P. C. New Series, 
 392; S. C. 3 Bligh, New Series.) Even under Fitzherbert's 
 definition, an educated Mute, in that age, would not have been 
 an idiot. But such definitions were of no practical consequence, 
 for it was wisely ordained by the common law that the question 
 whether or not a man was to be adjudged an idiot, was a ques- 
 tion of fact, to be determined by a jury, not according to legal 
 definitions, but as they found the fact to be upon the testimony 
 laid before them ; and no man could be deprived of his property 
 or of the common rights and privileges of a subject upon 
 that ground, unless upon "offices found," as the old legal 
 phrase is. (Dyer, 25; Moor, 4, pi. 11; Bacon's Abs. 5; 
 Idiot, B.; Skin. 5, 178.) 
 
 That the Deaf and Dumb from birth were deemed incapable 
 of giving their consent to any act, and that acts done by them 
 while under this infirmity, such as granting or conveying any 
 interest in their real estate were void, was up to this period the 
 recognized rule of law, has been shown by the writers referred 
 to. But in the very reign in which Fitzherbert wrote, the law 
 upon this point seems to have been questioned. In the thirty- 
 sixth year of Henry VIII, a case occurred in Avhich a son 
 sought to avoid a conveyance of land made by his father, upon 
 the ground that his father, in the language of the report, (Young 
 v. iSantj Dyer, 56, a.) was "from the time of his birth until 
 the day of his death, deaf and dumb, and being so deaf and 
 dumb, made a charter of feoffment of the land, which charter 
 he sealed and delivered upon the land, to the defendant. The 
 son accordingly brought an action of trespass against the de- 
 fendant for entering upon the land ; and the defendant de- 
 murred ; that is, denied that the son had any ground of action 
 against him, or had any right to the property. What decision 
 was come to by the court upon the interposition of this de- 
 murrer, whether they held that the defendant had acquired 
 a lawful right to the land under the instrument which the Deaf 
 and Dumb owner of it had sealed and delivered to the defend- 
 ant, or whether the son was entitled to the property by reason 
 of his father's incapacity to make such a deed of conveyance, 
 does not appear from the report ; but the case is referred to,
 
 20 
 
 to show that the law was not at that time taken for granted, 
 but was at least doubtful or unsettled. This state of uncer- 
 tainty seems to have existed during the reigns of Elizabeth and 
 James I ; for Lord Coke admits that it was the opinion of some, 
 that this class of persons might express their consent by signs. 
 "One," he says, that is deaf and wholly deprived of his hear- 
 ing cannot give, and so one that is dumb and cannot speak. 
 Yet (according to the opinion of some,) they may consent by 
 signs ; but it is generally held that he that is dumb cannot 
 make a gift, because he cannot consent to it. (1 Just. 107.) 
 
 In the reign of Charles II, however, a case arose in which the 
 question came directly before the court for decision ; whether a 
 person born dumb and deaf could transfer an interest in lands, 
 and give a valid consent to the transfer by signs. We will give 
 the case as it appears in Carter's Reports, (Martha Elyot's case, 
 p. 53.) The Chief Justice, Bridgman, reported that a woman 
 came before him to levy a fine, (one of the modes of transferring 
 estates of freehold by the common law,) and he gave to the court 
 the following statement : She and her three sisters have a house 
 and land. An uncle hath maintained and taken great care of 
 her, and he is to buy the house and land of them, and he agrees 
 to rnantain her, if she will pass her lands for security. As of 
 her intelligence, the sisters say she knows and understands the 
 meaning of all this. I demanded what sign she would make for 
 passing away her lands, and as it was interpreted to me, she put 
 her hands that way, where the lands lay, and spread out her 
 hands. It being a business of the court, and for her own good 
 I thought fit to communicate it to you. He then referred to the 
 case of one Hill, who was born deaf and dumb, and was brought 
 before Justice Warburton to levy a fine, but the judge would 
 do nothing until he had acquainted his brethren. Hill was ex- 
 amined, and being found intelligent, Judge TV. took the fine. 
 Upon this report being made to the court by C. J. Bridgman-, 
 Archer, one of the Justices, said the rule of law is that in fines 
 and feoifments, (the usual mode at that time, of conveying an 
 interest in land,) if there is good intelligence, they (Mutes) may 
 do such acts. They may be admitted to make contracts for their 
 good. They are admitted, upon examination, to marry and re- 
 ceive the sacraments. They may make contracts for their 
 persons, why not for their estates ? I conceive that it may be
 
 done, and that your lordship may take the fine. The other two 
 judges, Tirrel and Brown, agreed, and the fine was accordingly 
 taken. 
 
 When this case occurred, the successful efforts that had been 
 made during the century preceding, in different parts of Europe 
 to instruct the Deaf and Dumb and improve their condition, had 
 been brought before the English public. Half a century had 
 elapsed since Sir Kenelm Digby, and the other companions of 
 Charles I, in his romantic journey into Spain, had brought back 
 'reports of the marvelous success of Ponce and Bonet in teaching 
 Deaf-Mute nobles of the great house of Velasco. At the time 
 of this decision, Drs. Bulwer and Wallis, the latter a practical 
 teacher, and a man eminent in almost all kinds of learning, were 
 then living. Wallis had exhibited his pupil, Daniel Whalley, be- 
 fore the Royal Society more than ten years previously. Whal- 
 ley, indeed, was not deaf from birth, but others of Dr. Wallis's 
 pupils were. Dr. Bulwer's " Philocophus, or the Deaf and 
 Dumb Man's Friend," had been published more than twenty 
 years. Holder had also published his " Elements of Speech, 
 with an Appendix concerning persons Deaf and Dumb," in 
 which he gave an account of the method he employed, as early 
 as 1659, in the education of a Deaf and Dumb person. And 
 shortly before the decision now in question, that is in 1670, a 
 letter of Wallis, detailing his methods of instruction, had ap- 
 peared in the Philosophical Transactions, and in the same year 
 George Sibscota published his little work entitled the " Deaf and 
 Dumb Man's Discourse." Light was breaking at several distinct 
 points out of the night of darkness that had so long involved 
 the Deaf and Dumb. To these works, as well as to the per- 
 sonal efforts of those English philanthropists, the credit is no 
 doubt due for a more enlightened view on the part of the court 
 of the legal rights and responsibilities of this class of persons. 
 
 In this connection we will refer to a subsequent case which 
 appears to be the earliest English adjudication upon the right of 
 those born deaf and dumb to have the possession, enjoyment 
 and management of their real and personal property, where it 
 appears to the court that they have the requisite intelligence. 
 
 In 1754, a woman born deaf and dumb, upon arriving at the 
 age of 21 years, applied to the Court of Chancery for the pos- 
 session of her real estate, and for the enjoyment of her personal
 
 22 
 
 estate, (it is presumed that she had been previously under the 
 control of a guardian.) Upon her appearing before the Chan- 
 cellor, Lord Hardwicke, he put questions to her in writing, and 
 receiving suitable answers to them in writing, he ordered her ap- 
 plication to be granted. (Dickinson v. Blisset, 1 Dickens, 168.) 
 After the passage of the statute of Edward III, referred to 
 on a previous page, it became usual for the king to grant the 
 custody of the estates of idiots to some person, who thereby be- 
 came entitled to the same privileges and powers which the king 
 enjoyed under the statute, that is, the possession of the estate, 
 and the enjoyment of the rents and profits upon the condition of 
 supporting the idiot. These grants, which were made for a 
 bonus or consideration, became and continued for centuries to 
 be one of the sources of the royal revenue ; and the power thus 
 conferred upon these grantees or guardians, came in time to op- 
 erate injuriously upon such estates, as the guardianship of the 
 feudal barons had formerly done. (4 Inst. 203.) So great was 
 the hardship upon private families, that in the reign of James I, 
 it was proposed to vest the custody in the relatives of the party, 
 and settle an equivalent upon the crown in place of it. But an 
 abuse Avhich yielded so much revenue to the crown was not easy 
 of removal, and it remained uncorrected till the breaking out of 
 the revolution of 1640, since which time the crown has always 
 granted the surplus profits of an idiot's estate to some of his 
 family. (1 Ridley P. C. 519.) From the time of Henry VIII, 
 the administration of such estates was vested in a Court of 
 Wards. This court was abolished in the reign of Charles II, 
 and its authority over such matters then vested in the Court of 
 Chancery. And the right of directing the control and adminis- 
 tration of such estates has, in England, remained in the Court of 
 Chancery until the present time. Whether or not a man is an 
 idiot, incapable of managing his affairs, is ascertained by a writ, 
 de idiotd inquirendo, which must be tried by a jury of twelve 
 men. To prevent abuse, the finding may be reviewed in the 
 Court of Chancery, and the alleged idiot brought before the Chan- 
 cellor for inspection, who if he is not satisfied that the finding 
 is correct, may discharge the whole proceeding. If he is satis- 
 fied of its correctness, he appoints a person to take charge and 
 manage the estate, who acts always under the supervision and 
 control of the Chancellor.
 
 23 
 
 In this country this power is most usually vested in the courts 
 of equity, and though there are different regulations in different 
 States, the general mode of proceeding is essentially the same 
 as in England. 
 
 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 free- 
 dom from prejudice of the judge or jury. In such cases, in- 
 deed, 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 pro- 
 perty during his lifetime, cannot consistently be permitted to 
 alienate it from the legal heirs at his death. Tho Roman law 
 on this point we have already cited. The English law would de- 
 cide this question according to the actual intelligence manifested. 
 Other European codes, more influenced by the spirit of the Ro- 
 man 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, conform- 
 ing in this to the spirit of the Roman law, and avoiding the ig- 
 norant 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 no- 
 tions of the nature and effects of a testament ; that reading was 
 in him not merely an operation of the eyes, but also an opera- 
 tion of the understanding, giving a sense to the written charac- 
 ters, 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
 
 24 
 
 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 incompe- 
 tent till his competency is proved. 
 
 Piroux 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, evi- 
 dence 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 :f 
 
 " The heirs have not denied that the characters which com- 
 pose 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 in- 
 telligence ; hence that there was no occasion for a verification of 
 the hand-writing, or for enquiring at whose charge such verifica- 
 tion should be. 
 
 " No provision of law places the Deaf Mute in any exceptional 
 case as to the capacity of making a will ; he possesses the com- 
 mon rights of other men ; and therefore can, like the generality 
 of citizens, bequeath or give away property, provided he com- 
 plies 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, 
 
 * Piroux' Journal, L'ami des Sourds-Muets, tome 1, p. 5, taken from Le 
 Dictionnaire de Legislation usuelle, published in 1835 by M. Chabrol Chamdane. 
 
 f Piroux' Journal, tome i, p. 109-112. We have, in making the translation 
 here given, omitted the legal attendu que, which in the original begins each 
 paragraph. 
 
 J Dictating the provisions of a will publicly, in the presence of witnesses, to 
 a notary public, who, after writing it down from this dictation, reads it to the 
 testator, and attests his signature and acknowledgment. The French Code re-
 
 25 
 
 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 bt 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 signifi- 
 cation. 
 
 " But in the eyes of the law, and in its more extended accep- 
 tation, this expression has a very different sense ; and it is evi- 
 dent that in a matter of such importance as making a will, to 
 write most evidently cannot be understood of the purely me- 
 chanical act which consists in copying, instinctively or by imita- 
 tion, 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, ar- 
 range one's thoughts, put them in form and express them on 
 paper by means of certain conventional characters ; and conse- 
 quently, 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 ac- 
 ceptation of the word, it is indispensable to know the significa- 
 tions of words, to comprehend the relations which they have, 
 the objects and ideas which they represent ; that thus to estab- 
 lish that an individual knows or knew how to write, it is not 
 enough to produce a sample of characters placed one after ano- 
 ther ; this would only prove that he had been habituated to fig- 
 ure 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 
 
 quires that the testator should dictate the provisions of the will viva voce, and 
 should hear it lead; expressions which, if taken literally, would preclude all 
 Deaf and Dumb, or even merely Deaf persons, from this mode of making a will, 
 a mode evidently designed to assure certainty in drawing up the wills of illite- 
 rate persons. Some respectable lawyers, however, argue that the spirit of the 
 law would be complied with by dictating and reading in signs.
 
 26 
 
 otherwise, has so many difficulties to overcome in order to de- 
 velop, 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 Jhe 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. No- 
 thing 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 per- 
 sons 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 Abbe" 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 demoi- 
 selles 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 oppo- 
 sition, 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 signa- 
 ture of Charlotte Lange at the bottom of the protestation, which
 
 27 
 
 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 communication 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 this marriage, forced 
 on one part to have recourse to the Gf-arde 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 orr 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 mar- 
 riage 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 beeu 
 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
 
 28 
 
 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 intelli- 
 gence 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 know- 
 ledge 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 skilfully 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 
 
 * It is, however, to be observed that illiterate people generally have but a 
 confused idea of the meaning and force of legal phraseology, and are about as 
 much dependant as a half-educated Deaf Mute on the integrity of their men of 
 business.
 
 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 pro- 
 perty perhaps acquired by their own industry. The reason 
 given by Pothier, that "signs are too equivocal to authorize the 
 declaring one's last will in this mode," is, as the distinguished 
 Deaf-Mute Professor Berthier well observes, very contrary to 
 the fact, so far at least as concerns the signs used by Deaf 
 Mutes of fair intelligence, who have been accustomed to com- 
 municate freely, like Charlotte Lange, with those around them. 
 Berthier has, with equal zeal and ability, repeatedly brought 
 this and other points on which he conceives injustice has been 
 done to his unfortunate brethren, to the notice of the French 
 Legislature. If he has failed to obtain a modification of the 
 code in their favor, it seems to have be<m not so much from any 
 want of appreciation of the justice of his complaints, as because 
 more liberal principles of interpretation were beginning to 
 prevail in the French courts, by which the necessity of special 
 legislation is probably superseded. 
 
 The evidence of this change of views among French juriscon- 
 sults is found in a case recorded in Morels' " Annales des Sourds- 
 Muets et des Avengles," tome i. (1844,) pp. 164-179: "The Sieur 
 Clergue, Deaf Mute, not knowing how either to read or write, 
 appeared (in 1835) before M. Dubosq, notary, assisted by his 
 mother and his niece, and in presence of several witnesses, who, 
 by their relations with the Deaf Mute, were able to understand 
 his signs. He declared in a language understood by all present, 
 that he gave the ownership of all his property to the Sieur Pierre 
 Clergue, his nephew, on condition that the latter should provide 
 for all his necessities during his life. The acte drawn up by the 
 notary Avas read to those present, and explained in mimic Ian-
 
 30 
 
 guage to the Sieur Clergue, who manifested, by very intelligible 
 signs, that the notary had faithfully expressed his mind." 
 
 "After the death of the Sieur Clergue, in 1839, his heirs at- 
 tacked the donation, as emanating from an incapable person. 
 They founded their case principally on this, that a Deaf Mute, 
 who does not know how to read and write, not being permitted, 
 by the terms of the French Civil Code, (article 936,) to accept 
 a donation without the assistance of a curateur,* should have, a 
 fortiori, need of this assistance to express his own consent to a 
 donation of his property." To which it was replied, that it was 
 easier to know what one gives, than to understand what one 
 binds one's-self to in accepting a donation ; that the rule of the 
 code was not designed as a rule of capacity, but for the advan- 
 tage of the Deaf and Dumb, enabling all to accept donations, 
 and leaving those who possessed sufficient intelligence to make 
 them. 
 
 The case was carried from court to court, till it reached the 
 court of the last resort, the Cour de Cassation; and by each 
 tribunal before which it was taken, the donation was sustained. 
 The grounds of this decision were mainly these : 
 
 "In general, every person can make a contract, unless ex- 
 pressly incapacited by law ; incapacities should be strictly con- 
 strued, and were not to be extended beyond the letter of the 
 law." The authors of the civil code (following, according to 
 their published debates, the expressed opinion of the First Con- 
 sul himself on that point,) had expressly refused to deny the 
 faculty of contracting marriage to Deaf Mutes, even if illiterate, 
 leaving the tribunals to judge from their signs, whether they 
 possessed the degree of intelligence necessary to a valid consent, 
 and had expressed such a consent ; and this faculty of contract- 
 ing marriage involves the very principle in question in this case, 
 that of making a donation inter vivos, (a gift of one's property 
 in one's lifetime.) Since the success that has attended the efforts 
 to educate them, Deaf Mutes can no longer be considered, as 
 they are by the Roman Code, as being generally wanting in the 
 intelligence necessary for managing their own affairs ; the facts 
 and circumstances proved that the Deaf Mute Clergue had the 
 
 * The acceptance of a formal donation, on account of the onerous conditions 
 sometimes annexed, requires caution and intelligence in the donee.
 
 31 
 
 capacity necessary for making a contract, and that he could put 
 himself in communication with the notary and the assistants, 
 (those present,) in such a manner as to leave no douht of his 
 intentions or of his will. 
 
 It is evident, that if a Deaf Mute has the capacity to make a 
 valid donation of his property in his lifetime, by an instrument 
 drawn up from his signs, and acknowledged by him by means of 
 signs, he must be equally capable of making a will in some 
 similar mode. Granting him the former capacity, it must be 
 absurd to refuse him the latter. The difficulties are merely mat- 
 ters of form, which will doubtless be got over, when the principle 
 is once admitted. 
 
 In English and American laws, the distinctions of the French 
 law between the different sorts of wills (the testament olograph, 
 the testament par acte publique, &c.) do not exist. The circum- 
 stance of a will being written wholly by the testator's own hand, 
 does not make it valid, if the required forms of attestation before 
 the legal number of witnesses were not complied with. The 
 Surrogate of New York observes: "No particular form is re- 
 quisite ; all that the law requires is, that the testator shall com- 
 municate to the witnesses that it is his will, and that he desires 
 them to attest it. This can be done by reading and other acts 
 performed by a third person, pro'vided an intelligent assent on 
 the part of the testator be shown. Indeed, not a word need of 
 necessity be said. A Deaf Mute might go through all the 
 ceremony l>y means of a written communication" * Of course, 
 this refers only to the case of a Deaf Mute able to read and 
 write. 
 
 We have not been fortunate enough to find any English or 
 American case in which the validity of a will, made by a Deaf 
 Mute, came in direct question ; but opinions bearing upon the 
 point before us, have been incidentally put forth by the very 
 eminent jurist, Surrogate Bradford, of New York, whom we have 
 just cited. He declared, (in Wier v. Fitzgerald, 2 Bradford's 
 Reports, 42,) that the law does not prohibit a deaf, dumb or 
 blind person from making a will; that the defects of the senses 
 do not incapacitate, if the testator possesses sufficient mind to 
 
 * Bradford's Reports, 265.
 
 32 
 
 perform a valid testamentary act; and after reviewing the provi- 
 sions in the Code of Justinian, and the rule as stated by Black- 
 stone,* that those born deaf, dumb and blind are incapable of 
 having animum testandi, and that their testaments are void, as 
 they have always wanted the common inlet of understanding ; 
 he says that this rule was necessarily qualified by the reason of 
 it, which was a presumed want of capacity ; and, of course, in 
 any case where it appears as matter-of-fact that there was 
 sufficient capacity, the reason of the rule no longer applies. 
 
 We have, however, a direct adjudication upon the kindred 
 question, whether an uneducated Deaf Mute can make a valid 
 deed or conveyance of real estate. In Brower v. Fisher, (4 John- 
 son's New York Chancery Reports, 441,) a deed was declared 
 valid that had been made by an uneducated Deaf Mute; it being 
 shown on enquiry, by a commission of lunacy, that the grantor, 
 though born deaf and dumb, " had sufficient intelligence for the 
 management of himself and property, and was capable of com- 
 municating, by signs and motions, with persons with whom he 
 was intimate, so as to be well understood and of understanding 
 them; that the jurors were of opinion that the defendant was 
 not a lunatic, unless the fact of his having been born deaf and 
 dumb, in judgment of law made him a lunatic." The Deaf 
 Mute had sold his interest in his father's estate to the plaintiff 
 for $375, which was proved to be a fair compensation under the 
 circumstances, being assisted in making the sale by his mother 
 and an intimate friend; and subsequently bringing suit on the 
 bond then given, the purchaser was advised that the deed from 
 a Deaf Mute was not valid, and appealed to the Court of Chan- 
 cery for his own protection. Chancellor Kent decided that the 
 deed was valid under the circumstances; yet that "the bill does 
 not appear to have been filed vexatiously, but rather to obtain, 
 for greater caution, the opinion of the court on a point which 
 had been left quite doubtful in many of the books, and which 
 had never received any discussion here." The Chancellor ob- 
 serves : " Upon the finding of the jury under the commission, in 
 nature of a writ de hinatico inquirendo, I refused to appoint a 
 committee, and adjudged that the defendant was not to be 
 
 * 2 Blackstone's Commentaries, 497.
 
 deemed an idiot from the mere circumstance of being born deaf 
 and dumb. This is a clear, settled rule, and numerous instances 
 have occurred in which such afflicted persons have demonstrable 
 shown that they were intelligent, and capable of intellectual and 
 moral cultivation." This is quite a safe assertion, even in this 
 country, in 1820, the date of this case. After citing conflicting 
 cases and authorities, for which we refer our readers to the 
 volume of reports, the learned and able Chancellor goes on to say : 
 "Perhaps, after all, the presumption in the first instance is, that 
 every such person is incompetent. It is a reasonable presump- 
 tion, in order to ensure protection and prevent fraud, and is 
 founded on the notorious fact, that the want of hearing and speech 
 exceedingly cramps the powers and limits the range of the mind. 
 The failure of the organs necessary for general intercourse and 
 communion with mankind, oppresses the understanding : affigat 
 Jiumo divines particulam auree. A special examination, to repel 
 the inference of mental imbecility, seems always to' have been 
 required, and this presumption was all that was intended by the 
 civil law, according to the construction of the ecclesiastical 
 courts ; for a person born deaf and dumb was allowed to make 
 a will, if it appeared, upon sufficient proof, that he had the re- 
 quisite understanding and desire. I am satisfied that the plain- 
 tiff is justly to be exempted from the charge of a groundless and 
 vexatious inquiry, and the course is not to punish the prosecutor 
 of a charge of lunacy with costs, if the prosecution has been 
 conducted in good faith, and upon probable grounds. I shall, 
 therefore, dismiss the bill without costs." 
 
 The effect of this decision seems to be, that a Deaf Mute from 
 birth is, in all cases, to be presumed incompetent to make a will 
 or a contract, till his competency is proved ; and that if he sells 
 property, and the buyer afterwards choses to question his com- 
 petency, he must defend himself at his own costs. We submit 
 that it would be more in accordance with reason and justice to 
 presume his competency, as in the case of men who hear and 
 speak, Avhen he has among his neighbors a reputation for intelli- 
 gence, and ability to manage his own affairs, and more espe- 
 cially, when he has been taught to read and write. It is to be 
 presumed that no man would make a contract with him, unless 
 he had such a reputation for intelligence and competency ; and 
 if the purchaser of property from a Deaf Mute neglected to 
 3
 
 34 
 
 ascertain this point beforehand, we, with all due respect to the 
 high authority we have cited, respectfully submit that the ladies 
 is his own, and that he ought to bear the costs of an inquiry 
 which he ought to have previously made himself. It is observa- 
 ble that Chancellor Kent, in the opinion before us, makes no 
 distinction between Deaf Mutes who have and those who have 
 not been educated. Probably, at that early day, he was hardly 
 aware of the nature of this distinction. Indeed, it is a fact, that 
 there are some uneducated Deaf Mutes more intelligent in mat- 
 ters concerning their own affairs, than are some of those who 
 have spent years in an Institution ; for all the care of the 
 teacher cannot remedy the original want of capacity. Such 
 cases are however rare. The fact of having been educated is 
 one strong presumption of capacity of a Deaf Mute to manage 
 his own affairs ; and if not educated, still his reputation for in- 
 telligence among his neighbors ought, as we have already ob- 
 served, to be presumptive proof as to his capacity or incapacity. 
 
 The capacity of making a contract involves the capacity of 
 making a will ; as we see, in the citation just given from Chan- 
 cellor Kent, he refers to the testamentary capacity conceded to 
 Deaf Mutes by "the ecclesiastical courts," where they were 
 proved to have "the requisite understanding and desire," in 
 illustration of the capacity of a Deaf Mute to execute a valid 
 deed. From this decision, therefore, and from the opinion ex- 
 pressed by Surrogate Bradford, before referred to, we are war- 
 ranted in declaring the law to be, that an intelligent Deaf Mute, 
 even if unable to write, and only able to make his wishes known 
 by signs, can make a valid will, or valid deed, or bind himself to 
 any other obligation or contract. And we have high legal 
 authority for adding, that whatever may be the degree of his 
 intelligence, he is bound for, and an action can be maintained 
 against him for necessaries suitable to his condition, unless it 
 appear that the person who supplied them knew of his want of 
 ordinary intelligence, and imposed upon him. (Baxter v. Earl 
 of Portsmouth, 7 D. & D. Ky. 614; 5 Barn. & Cres. 170; 2 Car. 
 Pay. 178.) 
 
 In the same volume (4th) of Johnson's Chancery Reports, 
 (p. 168,) we find a case in which a woman " unmarried, of the 
 age of sixty years, deaf and dumb from infancy, and of such 
 imbecility of mind as to be incapable of defending the suit" in
 
 35 
 
 which she was legally a party with her brother and others, was 
 admitted to appear and defend by guardian. No special inquiry 
 was here made ; the facts on which the application for the ap- 
 pointment of a guardian were founded being merely verified by 
 affidavit. Here, it will be seen the appointment of a guardian 
 was grounded on " imbecility of mind," and not merely on the 
 defendant's being deaf and dumb. She was doubtless unedu- 
 cated ; for, at that date, (1819,) there were no Deaf Mutes in 
 the State of New York, sixty years of age, who had had the 
 opportunity of receiving an education. Had she been educated, 
 however, there can be no question that extreme " imbecility of 
 mind," though it would be less likely to supervene, would, if pre- 
 sent, be a cause for appointing a guardian.* We find a French 
 case in point, recorded by Piroux, who informs us that he was 
 called in, as an expert, to give advice on the question, whether 
 Frances Boury, one of his former pupils, (at Nancy, in Eastern 
 France,) was in a condition to manage her own estate, or whether 
 it would be for her benefit to name for her a conseil judieiare, 
 (a sort of half-guardian.) " Knowing (he says) that this young 
 woman has no longer father or mother ; that she is obliged to 
 live with illiterate persons, among whom her instruction cannot 
 be continued, and, finally, that a sickness of nearly a year, which 
 she had when in our establishment, has hindered her progress, 
 we considered that it would be useful for her to name for her a 
 conseil judiciare, and the tribunal has, by a judgment, confirmed 
 our opinion/' f 
 
 * Since writing this paper, we have examined the laws of Georgia, in which 
 it is enacted, that " Deaf and Dumb persons shaJl be so far considered idiots in 
 law as to autiiorize the inferior court to appoint guardians," etc. : provided, it 
 shall be made satisfactorily to appear to said court that such Deaf and Dumb 
 person or persons are incapable of managing his or her estate, or him or her or 
 themselves.'' This is the only American legislative provision on this point that has 
 come to our notice. Possibly similar provisions may exist in the laws of other 
 States; but we believe not in those of the North-Eastern or Middle States. By 
 the principles and practice of the common law, courts might, without special 
 enactment, appoint guardians for any person satisfactorily shown to be incapable 
 of managing his estate, whether deaf and dumb or not. (See 2 Johnson's New 
 York Chancery Reports, 235.) It seems then the indignation expressed by a 
 Georgia Deaf Mute at the law just cited (Am. Annals, viii, 124,) was rather 
 unnecessary. 
 
 f L'Ami des Sourds-Muets, tome v, p. 9: We suppose that a conseil judiciare 
 differs from a curateur cr guardian, in that the latter acts according to his own
 
 36 
 
 Another case is recorded, in which " three Deaf-Mute bro- 
 thers of Normandy, who could count money, play cards, &c., 
 were interdicted (that is, declared incapable of contracting, etc.) 
 by the Civil Tribunal of Loziere. One of them, endowed with 
 a rare intelligence, finding the decision of the Tribunal an obsta- 
 cle to his marriage, appealed to the Cour Royale of Rouen. 
 This court was of opinion that the provisions of the law relative 
 to interdiction should be restricted to the three cases of imbe- 
 cility, dementia, and insanity provided for in the Code ; and that 
 this Deaf Mute not being in either of these three cases, could 
 not, on account of his infirmity alone, be subjected to a measure 
 so rigorous as the interdiction."* From these cases we learn, 
 that though through the influence of the Roman and other an- 
 cient codes, there is a tendency among lawyers and judges to 
 question the capacity of Deaf Mutes to manage their own affairs, 
 merely on account of their infirmity, yet the better opinion, 
 both under the French laws and our own is, that they are to be 
 treated according to the actual intelligence they evince. 
 
 Passing on to another branch of our subject, we will consider 
 the capacity of a Deaf Mute to contract marriage. By the 
 common law, which in this respect differed from the civil (Ro- 
 man) law, the marriage of an idiot was valid. It seems strangely 
 inconsistent, that the same law which declares this class of per- 
 sons incapable of giving their consent to anything, still recog- 
 nized their right to enter into the contract of matrimony. Yet 
 the point, their ability and the validity of such a marriage, ap- 
 pear to have been expressly adjudged. (3 Coke Lit. 80 a, note 
 47.) "If he is able to beget either son or daughter," says one 
 of the early writers on the common law, " he is no fool natural." 
 (Green, Saver de default.} But in the last century, this long- 
 received doctrine of the common law was called in question ; and 
 after much examination and full deliberation on the part of the 
 courts, it was held that this, the most important contract of life, 
 
 judgment, independently of the wishes of his ward, while the former only gives 
 validity to the nets of his ward by his advice and consent. Would not it be 
 useful to have similar pi-ovisions in our laws? There are many cases in which 
 persons cannot be trusted with the independent control of their property, and 
 yet ought not to be wholly deprived of the power of managing it. 
 
 | Piroux' Journal, L'arai des Sourds-Muets, tome v, p. 52.
 
 37 
 
 the very essence of which is consent, could not be entered into 
 by one destitute of reason. (1 Hogg. Cons. R. 417 ; 2 Phill. 
 19, 70.) 
 
 Of the capacity of a person born deaf and dumb, if compos 
 mentis, to contract matrimony, there never appears to have been 
 any doubt under the common law, and the validity of such a 
 marriage contracted by signs, was recognized towards the close 
 of the 17th century. Swinburne, an old writer on the law of 
 marriage, whose work on Spousals was published in 1686, after 
 declaring that some held that words were necessary, as touching 
 the church, and some that they were not, says : " Their consent 
 alone is sufficient for matrimony of whose conjunction there is 
 any ado ; and it followeth that he or she which cannot speak 
 may contract matrimony. The reason there yielded is this : 
 Quod verbis non potest, signis valeat declarare : that which can- 
 not be expressed by words may be declared by signs ; seeing 
 their sole consent is sufficient, and seeing that they which be 
 dumb and cannot speak, may lawfully contract matrimony by 
 signs, which marriage is lawful, and availeth not only before 
 God, but before the church ; it followeth that words are not so 
 precisely necessary, as without the which matrimony cannot be 
 contracted ; and this conclusion is cpmmonly received of all or 
 the most later writers : " and he refers to a large list of various 
 authors and writers. (Sivinburne on Spousals, 204, c. xv.) 
 
 The rule of the civil law, by which Deaf Mutes were consid- 
 ered incapable of contracting matrimony, appears to have been 
 relaxed by the authority of the church ; for we find in the 
 twelfth century, a decretal of Pope Innocent III, authorizing 
 such marriages. Whether this was confined merely to the Papal 
 States, or was designed as a fixed regulation of the ecclesiastical 
 or canon law, we are unable to state. It seems, however, not 
 to have been followed or acted on in countries where the canon 
 law prevailed ; for in France the validity of such marriages 
 was not recognized until within a comparatively recent period. 
 According to Professor Vaisse, they were recognized for the 
 first time by a decree of the Parliament of Paris, of the 16th of 
 January, 1658. We have already stated the fact, that the au- 
 thors of the civil code, (the famous Code Napoleon,) rejected the 
 project of a law on this point, leaving it to the tribunals to 
 judge according to the circumstances of each case. In France,
 
 38 
 
 where the Deaf Mute can read and write, there is, of course, no 
 difficulty. Where he is illiterate, different views have been taken 
 by the magistrates before whom Deaf Mutes have presented 
 themselves, attended by their most intimate friends as interpret- 
 ers, in order to have the civil part of the contract of marriage 
 legally performed. (In France, the reader should bear in mind, 
 the law requires a civil contract of marriage to be entered into 
 before the maire of the commune ; and takes no notice of the 
 religious ceremony, for which the parties usually proceed from 
 the office of the maire (mayor) to the church.) Some amusing 
 cases are recorded in Piroux' Journal. In August, 1842, the 
 maire of Gensac, a little village of Guyenne, was summoned be- 
 fore the civil tribunal of Castel-Sarrasin, at the instance of Mar- 
 guerite L., an uneducated Deaf Mute, whose marriage he had 
 refused to celebrate. " Marguerite was a young woman of 
 twenty-five, robust, healthy, affectionate, capable of managing 
 household affairs, intelligent enough to wind up the house clock, 
 and set it to the right hour, and, for a peasant, rich. A young 
 man of the same village sought her in marriage. The girl con- 
 sented, so her parents attest, as well as the play of her features, 
 and her signs as expressive as tender. But M. le Maire, cold 
 interpreter of the law, who acknowledged in the young woman 
 the most praiseworthy qualities, avowing that she kept her cows 
 with care, that she is a good housewife, that she fulfills admirably 
 the duties of a daughter, but who did not find in her the intelli- 
 gence of the chapter VI of the Civil Code, title of Marriage, 
 on the duties of husbands and wives refused to see a consent to 
 marriage in those signs which the amorous Thyrsis found so 
 expressive. 
 
 Appearing before the tribunal, the President sent out her 
 friends, and attempted to interrogate her, with a loud voice, him- 
 self of course without any result. The best educated Deaf 
 Mute, unless he had acquired a rare faculty of reading on the 
 lips, had been equally unable to understand the President's ques- 
 tions. This proceeding gives no very favorable idea of the 
 sagacity of the judge, or of his appreciation of the peculiar cir- 
 cumstances of a Deaf Mute. Her mother being then called in, 
 the President desired her to ask her daughter whom she wished 
 to marry, and to tell her to seek him in the hall. After some 
 pantomime between the mother and daughter, the latter hastily
 
 39 
 
 passed among the assembled crowd, found her lover, and led him 
 forward by the hand, amidst the encouraging smiles of the spec- 
 tators. Her advocate maintained that she had sufficiently mani- 
 fested her wish to marry the Sieur B. ; but the procureur de rci 
 replied : 
 
 " The question has been put wrong ; we have not to inquire 
 whether the young woman L. attends to her household aifairs, 
 whether she cooks well or ill these facts are not contested ; but 
 whether she comprehends the burdens and duties (charges et de- 
 voirs) of marriage ; we have to inquire whether she is capable of 
 giving an intelligent consent. We think not. It is not enough. 
 in order to prove that she comprehends the importance of this 
 solemn act, that she should push from her the huissier*, or that 
 she should lead forward her pretendant, (suitor.) Whatever her 
 advocate may have maintained, marriage does not consist in the 
 mere bringing together of the sexes : marriage is rather a moral 
 and civil bond which forms families ; families are the nursery of 
 the State. Among us one does not make a gipsy marriage a 
 marriage by breaking the pitcher. f You will, therefore, reject 
 the demand of the Deaf Mute, and condemn her to pay the 
 costs." (Piroux Journal, iv, 140.) 
 
 The distinguished Deaf Mute Berthier, commenting in the 
 public prints on this specious reasoning, remarks : " These 
 burdens and duties of marriage, is it then necessary that the 
 Deaf and Dumb should know them more thoroughly than other 
 men ? Are there, for their peculiar use, definitions more 
 philosophical and metaphysical ? The first village lout who 
 presents himself is allowed to marry, provided he says yes, 
 and a doctor's diploma is almost necessary to the Deaf Mute 
 who would marry." 
 
 The court, not being satisfied with the proofs offered of the 
 intelligence of Marguerite L., named as interpreter, a curate, 
 who demanded three months to enable him to communicate 
 with the Deaf Mute. Whether, after this delay, the marriage 
 was finally ordered, is not on record. We cannot but agree 
 
 * The huissier of the court had been proposed to her (in pantomime) as her 
 future husband. 
 
 | A ceremony of marriage observed by the French gipsies.
 
 40 
 
 with Berthier that the suit of Marguerite was subjected to 
 delay, and perhaps to final refusal, rather on the ignorance 
 of the court than of the Deaf-Mute suitor. It had been far 
 more rational to have sent for some person already habituated 
 to converse with the Deaf and Dumb ; as was done in the 
 next case we cite. 
 
 This case occurred in Provence, a few months later. The 
 Maire of Rousillon scrupled to perform the ceremony of .mar- 
 riage for a Deaf-Mute bride, an intelligent dress-maker, but 
 who could only express herself by signs. The case was carried 
 to the civil tribunal of Apt, when (in December, 1842,) after 
 argument on both sides, and an examination of the would-be 
 bride in open court, by sworn interpreters, who were themselves 
 well educated Deaf Mutes, " after a session that lasted two 
 hours, the tribunal declared Victoire Mathiew competent to 
 give an intelligent consent to be married ; found no hindrance 
 to this marriage ; and ordered that the two interpreters who 
 had already served the court, should assist the mayor at 
 the celebration ; that their interrogation should be reduced 
 to the proces verbal by the mayor, and annexed to the aete* 
 of marriage, which should be signed by the same interpreters. "f 
 This decision, in connection with that already given in the case 
 of Clergue, seems definitely to establish the doctrine that, 
 in France, an illiterate Deaf Mute, if of sufficient intelligence, 
 and able to clearly manifest his wishes by signs, is capable 
 of entering into the contract of marriage, or any other civil 
 contract. 
 
 In some other European countries, greater difficulties are 
 opposed to the marriages of even educated Deaf Mutes. In 
 Prussia, it is said, two Deaf Mutes are not permitted to marry, 
 lest they should have Deaf Mute children, a chance which 
 experience in our own country has shown to be too small to 
 be a valid pretext for forbidding a union, that in other respects 
 promises to promote the happiness of the parties. 
 
 In Switzerland, at least in Berne, the largest of the Swiss 
 Cantons, Deaf Mutes, even if well educated, cannot marry 
 without having first obtained the consent of the courts of law. 
 
 * Eqiuvalent, or nearly so, to what we call a certificate of marriage, 
 f Piroux' Journal, v. 20.
 
 41 
 
 The following case, which we find in Pircux' Journal, the 
 American reader can also consult in the chapter on the Deaf 
 and Dumb in Beck's Medical Jurisprudence. 
 
 Anna Luthi was one of the most intelligent and best educated 
 pupils of the Deaf and Dumb Institution of Berne. Her 
 father was dead, and her mother re-married. She was a very 
 pretty young woman of twenty-five, and possessed a fortune 
 of thirty thousand francs. Her hand was demanded in marriage 
 by one M. Brossard, who had been deaf from the age of four- 
 teen, a skillful lithographer, employed several years in the 
 Institution where Mademoiselle Luthi was educated, a man 
 of thirty-two years, possessing an excellent character, and 
 already having laid up some money. 
 
 Some of the relatives of the demoiselle Luthi, and especially 
 the authorities of her commune, jealous, it was said, of a 
 stranger to the Canton becoming proprietor of the fortune 
 which they would rather have fall to one of their own young 
 men, opposed this marriage ; raising the pretexts that Bros- 
 sard had abused his situation as her teacher to make her sign 
 a promise of marriage ; that he sought only her fortune, and 
 that it was to be feared that the children of such a union 
 would inherit the misfortune of their parents. This last alle- 
 gation was countenanced by the local medical men, and the 
 judges refused consent to the marriage. The lovers appealed 
 to the Supreme Tribunal of Berne ; and certificates from the 
 first professors of medicine of that city were procured in oppo- 
 sition to the opinion of the local physicians, as to the danger 
 of the children inheriting the deafness of the parents ; letters 
 were produced from the young woman to Brossard, sufficiently 
 evincing both her intelligence and her affection ; and the 
 tribunal unanimously decided that : " In the circumstances 
 of the case, a refusal of consent would be equivalent to a gene- 
 ral and absolute prohibition of the marriage of Deaf Mutes, 
 which, however, is not in the law ; farther, that the very con- 
 ditions in which the parties found themselves were a sort 
 of guaranty that the demoiselle Luthi would find in him, 
 more than in any other man, one capable of alleviating her situa- 
 tion, and that their pecuniary resources gave them the means 
 to procure all necessary aid in taking care of their children."
 
 42 / 
 
 The decision of the inferior court was accordingly reversed, 
 and the marriage permitted. 
 
 In this country, where there is no law against the marriage 
 of Deaf Mutes, the scruples of one magistrate or minister need 
 not hinder a ceremony, if the parties can find another, more 
 reasonable or more intelligent. Neither are they restricted, 
 as in some European countries, to have the ceremony performed 
 in their own commune or district. A marriage for which the 
 parties have crossed a State line, or any other line, if celebrated 
 in accordance with the local law, is as valid as if they had 
 been married at home. They have thus a wide field in which 
 to find officers qualified and Avilling to perform the ceremony. 
 
 The cases raised before the French and Swiss courts can 
 hardly be considered legal questions with us. They are rather 
 cases of conscience, and of common prudence, to be considered 
 by the friends of a Deaf Mute, if they have any influence 
 in aiding to, or dissuading from a marriage. In this country, 
 where education has been placed, by the benevolence and jus- 
 tice of our legislatures, within the reach of almost every Deaf 
 Mute of fair capacity ; we should hardly object to a rule that 
 uneducated Deaf Mutes ought not to marry ; for we trust there 
 will in time to come be very few Deaf Mutes in our country 
 of such capacity and energy that they ought to be encouraged 
 to marry at all, left without education. Yet we have known 
 several uneducated Mutes who have fulfilled, as well as ignorant 
 speaking persons generally do, the duties of husbands or wives 
 and parents.* 
 
 Several hundred marriages have been contracted by graduates 
 of the American Schools for the Deaf and Dumb within the 
 last thirty years. In the majority of these cases, both the 
 parties were Deaf Mutes. Though able to read and write, they 
 always prefer to have the ceremony performed in their own 
 language of gestures, whenever a clergyman can be found Avho 
 
 * Chancellor Kent observes, (4 Johnson Ch. Rep. 345,) "It is too plain a 
 proposition to be questioned, that idiots and lunatics are incapable of entering 
 into the matrimonial contract;" but he also decided, as we have already noted, 
 that even an illiterate man "was not to be deemed an idiot from the mere 
 circumstance of being born deaf and dumb."
 
 43 
 
 understands it, or a good interpreter can be obtained. The 
 superior impressiveness and solemnity of a ceremony so per- 
 formed, to one performed in writing, is a sufficient reason for 
 this preference. In cases of which \ve recollect some in which 
 one or both of the parties were uneducated Mutes, the necessary 
 questions and answers were of course either made by signs, or 
 translated in that language by somo person accustomed to com- 
 municate with the Deaf Mute. It ought to be more generally 
 known than it is, that the intelligence of a Deaf Mute does not 
 depend wholly, or perhaps even chiefly, on his skill in written 
 language ; that, on the contrary, it depends very much on the 
 copiousness and precision of his colloquial dialect of signs, and 
 on the extent to which he can converse by that means with those 
 around him. A Deaf Mute possessed of such a dialect may be 
 very intelligent though almost or quite illiterate. Hence it is 
 that even a short residence at one of our institutions is so bene- 
 ficial, even where only a very imperfect knowledge of written 
 language was acquired ; partly by the acquisition of an improved 
 dialect of signs, which in an institution is very rapidly made, 
 while the study of written language is slow, and partly from the 
 amount of general information acquired by free conversation 
 with the more advanced pupils. A Deaf Mute of naturally 
 quick perceptions will acquire by mere observation, tolerably 
 correct ideas of the nature and responsibilities of the marriage 
 relation, even if wholly illiterate. And a Deaf Mute, who from 
 interruptions to his term of instruction, has but a very scanty 
 knowledge of written language, may be, and often is as capable 
 of understanding and fulfilling these responsibilities and duties 
 as those who hear and speak. 
 
 We pass on to another of the questions before us, " The 
 proper mode in which a person profoundly deaf, and having 
 little or no skill in the language of signs, or having no inter- 
 preter who understands signs, but understanding writing per- 
 fectly, should take a judicial oath, or assume any legal obliga- 
 tion ?" 
 
 In the case of a Deaf Mute who cannot read and write, or 
 but imperfectly, the rule of the law, as we shall hereafter show, 
 is to employ a sworn interpreter familiar with his modes cf com- 
 munication. In the case of one who understands writing per- 
 fectly, it will appear by an English case we shall hereafter cite.
 
 44 
 
 the proper mode is to write to him what you would speak to one 
 who can hear ; and let him write what the latter would speak. 
 In the practical application of this rule there may be differences 
 of opinion. The only thing essential is that the Deaf person 
 should show in an unequivocal manner that he understands what 
 is written to him, and that he assents to it where his assent is 
 required. We have already cited an opinion of the learned 
 Surrogate of New York, that a Deaf Mute could go through the 
 whole ceremony of executing a will " by means of a conversation 
 in writing." In like manner an oath can doubtless be adminis- 
 tered in writing; but whether it is enough to write it before the 
 eyes of the Deaf Mute, requiring him to read and sign it, 
 (laying his hand on the Bible at the same time, or performing 
 such other ceremony as the case may require,) or whether 
 he should be required to copy it, is, in the absence of any statu- 
 tory provisions, a question to be determined by the tribunal 
 before which the Deaf Mute appears as a witness. 
 
 We would, however, observe, that though the copying of the 
 form of oath secures greater attention to the words that compose 
 it, it is not, in the case of a Deaf Mute, any test whatever that 
 he understands it, any more than a foreigner's repeating after 
 the magistrate a form of words in English would be a test that 
 he understood it. It is therefore, in every such case, the duty 
 of the judge to satisfy himself, by a conversation in writing, that 
 the Deaf Mute who offers to take an oath has a just idea of the 
 nature of the ceremony, and is aware of the consequences of 
 perjury; and that he understands the purport of the particular 
 oath placed before him. Piroux records a case in which a Deaf 
 Mute presented himself as an elector, (voter.) He wrote out 
 very readily and neatly, the prescribed oath of an elector; but 
 on attempting to communicate with him by writing, no answers 
 could be obtained to the simplest questions. When asked for 
 instance, What is your name? he merely copied the words. An 
 educated Mute, called in as interpreter, could not even communi- 
 cate with him by signs, (perhaps because the signs he used were 
 too artificial.) "In these circumstances the tribunal (of Nar- 
 boune) considered that the Deaf Mute could neither read nor 
 write; and declared him incapable of fulfilling the functions of 
 a communal elector, since it was impossible to make him compre- 
 hend what an elector is called on to do, nor what was that oath
 
 45 
 
 of which he copied so well the formula, but to which he could 
 attach no meaning.* 
 
 Where the Deaf Mute, understanding writing either imper- 
 fectly or not at all, is reduced to the aid of an interpreter for 
 taking an oath, or for any other legal proceeding, a teacher of 
 the Deaf and Dumb will undoubtedly be, in most cases, the 
 most proper person, as being accustomed to express in clear and 
 impressive signs, moral and religious ideas, f The intimate 
 acquaintances of an illiterate Deaf Mute, however readily they 
 may converse with him on matters of every-day life, will, in most 
 cases, be much embarrassed in endeavoring to express, in panto- 
 mime, such ideas as pertain to the taking of an oath. We shall 
 hereafter cite cases in point. 
 
 When Deaf Mutes appear before the tribunals, whether as 
 complainants, accused, or witnesses, much embarrassment often 
 results from their inability to comply with the old established 
 forms, adapted for those who hear tmd speak. The common law, 
 indeed, permits the form of an oath, where it is not prescribed 
 by statute, to be varied so as to adapt it to the religious belief of 
 the witness, or to have it taken in that form which he deems 
 most binding; and of course in the mode which will speak the 
 most directly and powerfully to his conscience. With this prin- 
 ciple in view, we shall have no difficulty in deciding that an oath 
 ought to be administered to a Deaf Mute, (we do not mean a 
 semi-Mute, or one who understands writing better than signs) 
 to a Deaf Mute we say, by means of an interpretation in his 
 own language of gestures. Papists are sworn .on the crucifix, 
 Mahometans on the Koran, Hindoos on the waters of the 
 Ganges, &c. The same principle should teach us that, if it be 
 deemed essential to secure a religious sanction, or the dread of 
 punishment beyond human power, for an oath taken by a Deaf 
 Mute, it will suffice if, though not indoctrinated in the mysteries 
 
 * L'Ami des Sourds-Muets, ii, 76, 77. 
 
 f Though the advantage of having an interpreter, one skilled in the system 
 of signs used in an institution, is of course greatest where the Deaf Mute is 
 already acquainted with that system of signs; yet the power which the teacher 
 acquires of exhibiting to his new pupils religious and moral ideas clearly in 
 pantomime, enables him to impart such ideas to an uneducated Mute more 
 readily than any other person could.
 
 46 
 
 of the Christian religion, he still believes, as most Deaf Mutes, 
 even if uneducated, do, that there are superior beings in the sky, 
 by "whom wicked men are punished. But, as we shall hereafter 
 explain, the laws of some of the States have done away with the 
 religious test as affecting the competency of the witness ; leaving 
 it as one of the grounds on which the jury shall judge of his 
 credibility. And in the case of a Deaf-Mute prisoner, brought 
 before the tribunals for formal trial though naturally more 
 weight is given to difficulties of form, when they make in be- 
 half of the prisoner, especially of a prisoner whose double mis- 
 fortune gives him such claim to compassion we apprehend such 
 difficulties can be got over by the simple rule of regarding it as 
 the duty of the court or of the prisoner's counsel to do in his 
 behalf, whatever he wants intelligence to do for himself. The 
 questions that are on such occasions sometimes raised, as to the 
 degree of capacity and accountability of uneducated Mutes, are 
 more difficult of solution. 
 
 The Code Napoleon prescribes the forms to be observed in the 
 case of an accused person, or a witness who is a Deaf Mute. 
 " When a Deaf-Mute accuse does not know how to write, the 
 president shall appoint as his interpreter the person who is most 
 habituated to converse with him." " The same provision is made 
 in the case of a Deaf-Mute witness. " In case the Deaf Mute 
 knows how to write, the greffier (clerk) shall write the questions 
 and observations made to him ; they shall be put before the ac- 
 cused or witness, who will render by writing their answers or 
 declarations, The whole shall be read aloud by the greffier." 
 (Criminal Code, Art. 333.) 
 
 We doubt whether this particularity in prescribing forms is 
 judicious. There are cases in which some persons skilled in the 
 idioms and mental characteristics of the Deaf and Dumb as a 
 class will make a better interpreter than the person most accus- 
 tomed to converse with the prisoner, who, moreover, may possibly 
 be deficient in honesty or intelligence, or both. In fact, it ap- 
 pears that the French tribunals usually call upon a teacher of 
 the Deaf and Dumb, or a well educated Mute, to serve as inter- 
 preter in such cases ; probably making the letter of the code 
 defer to its spirit. And where an intelligent and reliable inter- 
 preter is present, and the Deaf Mute, as most Deaf Mutes do,
 
 47 
 
 understands signs better than writing, it seems to us preferable 
 that, even \vhen able to read and write passably well, his exami- 
 nation should be conducted by signs. Not only will the ques- 
 tions put to him be, in most cases more fully understood ; but 
 his examination will more nearly approach, in solemnity and di- 
 rectness of appeal to his conscience, the oral examination of an 
 ordinary witness. Often, however, a reliable interpreter may not 
 be procurable ; in some cases, even, the Deaf witness may not 
 understand signs as well as writing ; and the counsel on the one 
 side or the other may wish to put questions of their own wording : 
 in short, we give the preference to the rules of our common law, 
 under which the courts, on good advisement, have full latitude of 
 decision what mode of examination is best under the circum- 
 stances of the case. We shall hereafter cite decisions in point. 
 (See Snyder v. Nations, 5 Blackford's Rep. (Indiana) 295. 
 Morrison v. Leonard, 3 Car. & Pay. 127. St. of Conn. v. De 
 Wolf, 8 Conn. Rep. 93.) 
 
 It is a point worthy of special mention, that some uneducated 
 Deaf Mutes communicate with their intimate companions by 
 means of a peculiar dialect, which even those who are conver- 
 sant with the Deaf and Dumb would, at first, not under.-tand. 
 In a case which occurred in the interior of New York, an action 
 of affiliation was brought in behalf of an uneducated Deaf and 
 Dumb girl. She appeared before the court to give her evidence, 
 accompanied by her sister as interpreter, who communicated with 
 her, not by natural signs, or motions of the hands and fingers, 
 but by motions of the lips which to the bystanders presented 
 only uncouth and unintelligible mouthings and grimaces. The 
 opposing counsel, believing that this was all a deception, wrote 
 to Dr. Peet of the New York Institution for the Deaf and Dumb, 
 for his opinion in the case. Dr. Peet called up two of his pupils, 
 a brother and sister, who he knew were accustomed to converse 
 by similar means, having been taught to understand the motions 
 of the lips, aided by grimaces and gestures, by their father. He 
 found them able to converse in this way to a considerable extent, 
 and answered the lawyer's enquiry accordingly. It is a fact 
 that when hearing has been lost at such an age that an imper- 
 fect power of speech remains, the Deaf person makes little or no 
 use of those gestures on which Deaf Mutes from birth rely ; but
 
 48 
 
 communicates "with those most intimate with him by his imperfect 
 speech, especially if he cannot read and write, divining their re- 
 plies by the motions of the lips, to which grimaces and some simple 
 gestures will often be added for greater clearness and significance. 
 And, as we have seen, cases sometimes occur in which the use of 
 the voice may be lost entirely, only the motions of the lips and 
 the accompanying grimaces remaining. A Deaf Mute from 
 birth, or early infancy, naturally converses by means of gestures, 
 unless a different mode of communication is early taught him ; a 
 Deaf person who learned to read before his misfortune, may ac- 
 quire a decided preference for writing, or the manual alphabet, 
 as a means of communication: but a child who becomes deaf 
 after he is able to speak pretty fluently, but before learning to 
 read, is naturally led to efforts to divine what is said to him from 
 the motions of the lips and changes of the countenance, the 
 most difficult and least certain mode of the three though some 
 Deaf persons of quick perceptions have acquired surprising rea- 
 diness and expertness in guessing words from the motions of the 
 lips. And as the case just cited shows, Deaf Mutes from birth 
 sometimes learn to converse in a peculiar dialect of labial move- 
 ments and grimaces. 
 
 [ Since this paper was written, we have obtained fuller par- 
 ticulars of this case ; and, as it seems one of some interest and 
 importance, we annex the correspondence between the defend- 
 ant's counsel and Dr. Peet, and also statements made by 
 Hon. Bishop Perkins, counsel on the other side, and Joseph 
 Barnes, Esq., one of the judges before whom the case was 
 brought on appeal. The order of affiliation was made by two 
 Justices of St. Lawrence county, (town of Gouverneur,) in March, 
 1850, and on appeal to the County Sessions, on the 4th and 5th 
 of April following, after a very long and minute investigation, 
 which seems to have turned wholly on the ability of Mrs. 
 Thayer, the sister of the Deaf Mute, to communicate with 
 her by motions of the lips, the order was confirmed showing 
 that men who seduce Deaf Mutes, must not expect to escape 
 the consequences by the inability of the latter to testify against 
 them.
 
 49 
 
 The Defendant's Counsel to Dr. Peet. 
 
 CANTON, ST. LAWRENCE COUNTY, 
 March 21, 1850. 
 
 Dear Sir, I was called a few days ago to attend in my 
 professional capacity an examination before a magistrate in 
 the town of Gouverneur in this county, in a case of bastardy ; 
 the object of the examination being to determine judicially who 
 was the father of a child likely to be born a bastard of a young 
 woman about 27 years of age, then pregnant, and who has been 
 from her birth deaf and dumb. 
 
 The young woman, above described, was the principal witness 
 of course, and gave evidence through another person, sworn 
 to interpret truly the questions of the court to her, and her 
 answers to the court. 
 
 The interpreter employed on this occasion was an elder 
 sister of the Mute, who testified that the Deaf and Dumb 
 girl had resided in the family for several years, and professed 
 to be able to communicate freely with her by repeating to her 
 the questions proposed, calling the Mute's attention to the 
 movement of her own lips, and the expression of her counte- 
 nance, in the act of speaking or whispering to the Mute, and 
 by the movements of the Mute's lips, and certain inarticulate 
 sounds uttered by the Mute in reply, the interpreter professed 
 to ask and to receive answers from the Mute, respecting the 
 subject of the investigation. For instance the interpreter is 
 desired to ask the Mute, " When and where . the connection 
 took place, from which she became pregnant?" 
 
 The interpreter looks attentively in the Mute's face, and 
 moves her lips, as if repeating those words, (but uttering no 
 audible sound, nor making any manual signs.) 
 
 The Mute then moves her lips (with considerable distortion 
 of countenance,) and the interpreter states, " she says it was 
 on a Sunday afternoon in the month of June. I was with 
 a little girl picking berries by the road side, near a piece 
 of woods ; the defendant came there, and hired the little girl 
 to go further away, on pretence of getting some berries, and 
 while she was absent had the connection with me," &c. 
 
 The girl is uneducated, that is to say, she has been at no 
 4
 
 50 
 
 school where persons of that description are taught, nor has 
 she been taught any alphabet of signs,* but appears to be 
 tolerably intelligent for one of her condition, can -write her 
 own name, and can select and arrange in their proper order 
 printed letters, so as to spell correctly her own name. 
 
 Now, sir, it seems to me incredible that a person deaf and 
 dumb from birth, and consequently [having] no conception 
 of articulate sounds, could be so astonishingly quick and acute, 
 as to receive and impait freely ideas in the manner I have 
 attempted to describe. 
 
 I believed, and still believe, that the person employed in 
 this instance to interpret, was practicing a sheer imposition. 
 If the Dumb can thus speak, it seems to me little short of 
 miraculous, and that we need no schools specially devoted 
 to their instruction. 
 
 May I be permitted, although an entire stranger and claim- 
 ing no right to intrude my correspondence upon you, to ask 
 you in your professional capacity, as a person having great 
 experience of this unfortunate class of persons, whether in 
 your opinion it is possible that a person mute and deaf, such 
 as I have described, can converse and be conversed with in 
 the way I have described? 
 
 Did you ever, in your intercourse with your pupils or others 
 of that class of persons, discover or practice such a medium 
 of communicating ideas ? 
 
 I hope, sir, that the interest you may feel in the subject 
 of my inquiry, or mere courtesy to a stranger, may induce 
 an early answer to this hasty inquiry, and that you will pardon 
 the liberty I take in asking this favor. Will you also please 
 enclose this letter to me with your reply, if possible -without 
 delay. 
 
 I am, sir, very respectfully yours, 
 
 THOMAS V. RUSSELL. 
 
 To the Superintendent of the New York Deaf and Dumb 
 Asylum, New York. 
 
 * We suppose Mr. Russell means a Manual alphabet.
 
 51 
 
 Dr. Peet's Reply. 
 
 Dear Sir, In answer to the inquiry contained in your letter 
 of the 21st inst., as to the possibility of holding communication 
 with a person deaf from birth, simply by the motions of the lips, 
 as if speaking, with or without articulate sounds, I reply, that 
 the process which you describe as having been pursued in 
 the case referred to, is precisely the method adopted in the 
 German schools, where the teaching of articulation and of 
 labial reading is practiced. For a Deaf Mute taught in this 
 mode, it evidently makes very little difference whether the 
 person speaking to him articulates his words audibly, or merely 
 goes through the motions of the lips and other organs of 
 speech. 
 
 Abstractly considered, therefore, I consider that method 
 of communicating ideas possible. But two things are to be 
 specially observed. In the first place, long and constant 
 practice, both on the part of the Deaf person, and of the indi- 
 vidual communicating with him, is necessary before this faculty 
 is acquired, even in a limited degree ; and secondly, the sounds 
 uttered by tha Deaf person and the motions of the lips, would 
 probably, I may say in a majority of cases certainly, be unin- 
 telligible and unmeaning to all except the person or persons 
 accustomed to them, and in the constant habit of thus commu- 
 nicating with him. 
 
 In the specific case which you present, I am, of course, unable 
 to give an opinion, not being acquainted with facts and circum- 
 stances indispensable to the formation of a correct judgment. 
 But if these sisters have been long in the habit of conversing in 
 the manner you describe, I should consider it highly probable, 
 their previous good character for veracity being presumed, that 
 the questions and answers were truly and faithfully interpreted, 
 not perhaps in the precise terms in which they are given, but 
 in language which use had rendered intelligible to both. 
 
 In such a case, the signs made by the expressions of the 
 countenance and the movements of the lips, are analogous 
 to those made by the hands and arms. The use of neither 
 of these sorts of signs indicates or requires a knowledge of 
 the inflections of the parts of speech, or the laws which govern
 
 52 
 
 the collocation and arrangement of words in connected discourse. 
 The significancy and intelligibility of this sort of labial signs, 
 like those of manual signs, would be the growth of slow pro- 
 gress, patient effort, and daily, even hourly use, for no incon- 
 siderable length of time. In the case of persons who have 
 become deaf in childhood, after learning to speak more or less, 
 the motions of the lips serve to suggest words still remembered. 
 They read words in those motions, as we do on paper, much 
 less distinctly indeed : more like reading short hand, where 
 some words being clearly made out, others are guessed at by 
 the connection. But with one deaf from birth, the ideas must 
 be attached directly to the motions of the lips, and accompany- 
 ing grimaces, or distortions of the countenance. A person 
 attempting to establish communication with a Deaf Mute in 
 this mode, would naturally begin with single words, names 
 of objects in sight, and of simple actions and obvious qualities. 
 The meaning of each word or labial sign is thus first established 
 by convention, and with time and unwearied pains, a Deaf Mute 
 may be enabled to communicate on any ordinary matters of 
 daily use, by means of a peculiar dialect thus formed; the 
 terms of which are to the speaking person words probably in 
 an inverted and broken order, and to the Deaf Mute labial 
 signs, each representing directly an idea. In the case of the 
 sisters now in question, it is probable they did not use the same 
 phraseology that marks the conversation of other persons ; that 
 is to say, the words of which they imitated the labial motions 
 were not in the order in which those who hear and speak 
 arrange them, nor always the same words. The preference 
 would be given for words more distinctly marked on the lips ; 
 and, to save the labor of learning synonymes, one familiar 
 word would be made to represent several expressing similar 
 ideas. Thus the terms they used would probably suggest the 
 outlines only of ideas, made more definite by the accompanying 
 expression of the countenance, and, when interpreted, to make 
 them intelligible to others, would be reduced to a grammatical 
 arrangement, as in the examples cited by you. The language, 
 therefore, embodying the answers of the Deaf Mute girl to the 
 question proposed to her, was not that uttered by her, in so 
 many words, but the language of her older sister interpreting 
 the idea intended to be expressed.
 
 53 
 
 Instances have occurred in my own practice, and I may say 
 not a few, of parents who have conversed with their Deaf chil- 
 dren in this manner, and without the intervention of signs 
 of any kind. Such cases, of course, are much more common 
 where the children learned to speak before becoming deaf; but, 
 as I have just explained, it is possible to establish with a bright 
 and intelligent Deaf Mute from birth a quite copious dialect 
 of labial motions and grimaces. There are now in this Institu- 
 tion two pupils, a brother and sister, whose father always com- 
 municated with them, and received their replies by a system 
 of "labial reading." On the receipt of your letter, I called 
 these pupils into my room for the purpose of making an experi- 
 ment. I directed the brother to put to his sister certain ques- 
 tions which I presented to him in writing, and which she, of 
 course, did not see. The result was satisfactory, though I 
 remarked, that in some instances, the language of the question 
 was changed by the substitution of familiar words for those less 
 familiar. In reply to my question how they had acquired this 
 faculty, they replied, that they had grown into it by long habit. 
 
 One word respecting the inference which you draw as to the 
 necessity of schools specially for the Deaf and Dumb. A mo- 
 ment's reflection, I think, will show you the fallacy of your con- 
 clusion. Though this faculty of reading on the lips, and the 
 power of expressing ideas by the motions of the vocal organs, or, 
 I may say more correctly, by sounds inarticulate and unintelligi- 
 ble except to those accustomed to them, may, by long continued 
 and laborious effort, be acquired by some Deaf persons it is not 
 possible for all. And even in the case of those few, it is obvi- 
 ously by no means available for general intercourse, whether 
 for social enjoyment, or in matters of business, the power of 
 communicating in this mode being (except in rare cases of the 
 success of accomplished teachers of articulation) confined to the 
 few with whom the Deaf Mute has been in constant communica- 
 tion for a long series of years, generally beginning in early in- 
 fancy, as for instance, among the members of the same family. 
 This was forcibly illustrated in the necessity for an interpreter 
 between the court and the witness, in the case which you 
 present. 
 
 And I may add that the dialect of labial motions and grim- 
 aces established in the family with a Deaf child will be too
 
 54 
 
 meagre and imperfect to enable the Deaf Mute to attain such a 
 mental and moral development as is easily and readily attained 
 under the system pursued in a special school; such a develop- 
 ment, in short, as might have made the young woman you men- 
 tion a useful, respected and happy member of socioty. 
 
 You will perceive from the above, that I consider it possible 
 for a person deaf from birth to receive and impart ideas in the 
 manner you describe. Whether there was collusion between the 
 sisters, is a question to be determined by facts, and not on ab- 
 stract principles. It is. however, worthy of remark, that the 
 supposition of collusion would imply the possibility of intercom- 
 munication of some kind between the parties. 
 Very respectfully yours, 
 
 HARVEY P. PEET. 
 THOMAS V. KUSSELL, ESQ. 
 
 ST. LAWRENCE COUNTY SESSIONS. 
 
 The Overseers of the Poor of the Town of Cfouverneur "} 
 
 vs. 
 George P. Tuttle. j 
 
 JOSEPH BARNES, ESQ. 
 
 Dear Sir, The above action was an appeal from 
 the decision of two justices of the peace of the town of Gouv- 
 erneur affiliating upon the defendant Tuttle, a bastard child born 
 of Mary Coats, a Deaf Mute. It appeared that the said Mary 
 Coats was deaf and dumb from her nativity and had received no 
 scientific instruction ; that her relatives were in low circum- 
 stances as to property, and no method of communication as to 
 things not in sight was ever established between her and her 
 sister, or any of her family, save by the motion of the lips and 
 mouth. I was retained as counsel for the Overseers of the 
 Poor. Olive Thayer was sister of the Mute, and the only me- 
 dium of communication between her and the court. 
 
 When I was first retained, I was exceedingly incredulous 
 touching the ability to communicate between Mary and her sister, 
 in the manner alleged, particularly the abstract idea contained 
 in an oath, or the capacity of the Mute, by motion of the lips,
 
 to convey to her sister the fact of sexual connection, impregna- 
 tion, and the name of the father ; and the time and place of the 
 sexual intercourse ; and accepted a retainer with the greatest re- 
 luctance, and only after assurances of the neighbors of their en- 
 tire belief in the integrity of Mrs. Thayer. I then, before the 
 trial came on, visited Mrs. Thayer and the Mute, several times 
 questioning the Mute through her sister, and sending the Mute 
 for several articles, such as water and candles, into different 
 rooms, and under circumstances Avhere it seemed to me impos- 
 sible any other medium than the lips of her sister could have 
 been used to communicate my mandates, which were in every in- 
 stance obeyed, and finally, in response of questions propounded 
 by me, and communicated to her, by movements of her sister's lips, 
 for the purpose of ascertaining whether she could understand 
 the nature of an oath. I thought it quite plain she understood 
 her, that she was to be brought before a court, and required to 
 tell the truth as to who was the father of her child. She, by 
 signs and acts intelligible to me, without her sister's aid, gave 
 me to understand, if she told false, she would be taken from her 
 child and imprisoned. I could not make out that she had any idea 
 of an unseen Omniscient power, or of future rewards ; but hav- 
 ing satisfied myself that the Mute and her sister could communi- 
 cate with each other, through motions of the lips by her sister, 
 and signs and motions by the Mute, I entered upon the trial of 
 the appeal with the zeal becoming a man who believed a Deaf 
 Mute had been seduced by a man under the belief that sexual in- 
 tercourse was marriage. 
 
 For some six or eight hours before the Mute, was sworn, va- 
 rious questions were propounded, and directions given to Mrs. 
 Thayer to direct the Mute by her lips to do certain things. In 
 nearly every instance the Mute did the act required of her, and 
 I was, and I believe the court and bystanders were all entirely 
 satisfied that Mrs. Thayer made no motion, look or gesture, save 
 with her lips, indicating to the Mute what was desired of her. 
 
 The counsel of the defendant placed, or caused to be placed, 
 in a room near the foot of the stairs leading from the court 
 room to the front door, or principal entrance, on the left hand side 
 of the lower hall, an umbrella, and bid the sister to describe the 
 location of the umbrella and send the Mute after it. The Mute 
 left the court room, went down winding stairs, and sought the
 
 56 
 
 umbrella in a room opposite to the one where the umbrella was 
 placed. The Mute returned, saying, as Mrs. Thayer said, there 
 was no umbrella there. Her sister was informed by the con- 
 stable, that the Mute went to the room opposite the one she was 
 directed to go to. Mrs. Thayer, as she said, explained to the 
 Mute by motions of her lips that the umbrella was in the room 
 opposite the one she went to. In an instant the eyes of the 
 Mute flashed with intelligence, and she flew from the court room 
 and brought the umbrella. Many other like experiments were 
 tried, and most if not every one that related to common and fa- 
 miliar objects, were correctly responded to by the Mute, by doing 
 the act demanded of her. I believe all were convinced. Mrs. 
 Thayer made no sign save with her lips. 
 
 The order of filiation was confirmed by the court. 
 
 This statement, though an imperfect one, will, I think, give a 
 tolerable idea of the very interesting trial on the affiliation of the 
 child of Mary Coats, and, I hope, afford Mr. Peet the informa- 
 tion he solicits in his letter to you. 
 
 I have written in haste and have no time to revise the literary 
 execution of this account. 
 
 Respectfully, yours, 
 
 BISHOP PERKINS. 
 
 CANTON, October 24, 1856. 
 DR. H. P. PEET : 
 
 My Dear Sir, I this day received the enclosed statement from 
 Hon. Bishop Perkins after so long delay. His statement is not 
 as full as the facts would warrant, giving the several experiments 
 in the court room, and being present myself, one of the Court 
 of the County Sessions, well recollect the case : the court room 
 full, not a person doubted her ability to communicate with the 
 Mute in the way described by Mr. Perkins. 
 
 In addition to the statement of Mr. Perkins, I would say that 
 the defendant's counsel, as well as Mr. Perkins, counsel for Over- 
 seers of the Poor, directed Mrs. Thayer to communicate with 
 Mary by her lips without the use of her hands looking her 
 full in the face and directing her to snuff' the candle on the desk, 
 which she did at -once then to extinguish a certain other candle
 
 57 
 
 then burning in another part of the court room select the Bi 
 ble from two or three piles of books on the lawyers' table then 
 to point out to the defendant the father of her child in a crowded 
 court room send her for water and other things. 
 
 It is proper here to say, that many experiments to test the 
 witness, at the request of the defendant's counsel, one after 
 another, until she was sent for the umbrella down the stairs 
 passing the length of the court room descending winding stairs 
 to the centre hall of court house jury rooms on either side of 
 hall turning right and left in the hall opening door taking 
 the umbrella into the court room above to her sister. This 
 seemed to be satisfactory to all parties. 
 
 I am, dear sir, truly yours, 
 
 JOSEPH BARNES.] 
 
 In Beck's Medical Jurisprudence, (vol. i, p. 855,) we find 
 a case cited somewhat similar to that just mentioned as occur- 
 ring in the State of New York. James Whyte was charged, 
 in April, 1842, at the Circuit Court of Justiciary, held at 
 Stirling in Scotland, with robbery. " The principal witness, 
 James Shaw, was called, and one of the crown witnesses, 
 named McFarlane, having been sworn to act as interpreter, 
 McF. deposed that he had known Shaw from his earliest years, 
 had been on intimate footing with him, and was, on that 
 account, able to communicate with him better than any other 
 person whom he knew ; that Shaw was not born deaf, but 
 became so by disease about the age of seven years; that he 
 had been stone-deaf ever since, and had lost, in a great mea- 
 sure, the faculty of speech ; that he could talk a little, but 
 so very inarticulately that none but those who were in the 
 habit of communicating with him could understand his mean- 
 ing ; that the mode of communicating with him was partly 
 by signs, and partly by the motions of the lips. The inter- 
 preter having been desired by the court to repeat the oath 
 to the witness, after communicating with him, stated that 
 though he believed Shaw to be naturally honest and trust- 
 worthy, he found it impossible to convey to his mind any idea 
 of an oath: that the subject of their communications had 
 always been about ordinary country matters, arid that as Shaw 
 had received no education whatever, it was his decided opinion
 
 58 
 
 that he could not comprehend the obligation of speaking the 
 truth." In these circumstances, the court held that the wit- 
 ness could not be sworn, and he was accordingly rejected. 
 
 This decision is very unsatisfactory. A rule of law which 
 may preclude a man Avho has been robbed from giving evidence 
 against the robber, thus defeating the ends of justice, ought 
 not, in our view, to be based on the mere ignorance of the 
 injured party. His ignorance, (in this case certainly not from 
 any fault of his own,) makes him the more helpless, and hence 
 more deserving of the protection of the law. We think the 
 inquiry ought to have been, not whether Shaw understood the 
 nature and obligation of an oath, but whether he was likely 
 to tell the truth, and could relate clearly doings in which 
 he was concerned. And if that fact was established to the 
 satisfaction of the judges, his testimony should have been 
 admissible for what it was worth. 
 
 It is a well settled rule of the common law, of general 
 application in this country and in England, that no witness 
 is competent, unless he has a conception of divine pun- 
 ishment being a consequence of falsehood. (1 Phillips' Evi- 
 dence, 6.) Still even under the common law there seem 
 to have been cases in which this rule was made to bend to 
 the common sense view, that children of tender years, and 
 others like them, are as innocent as they are ignorant, and 
 when not perverted, or under the influence of interested persons, 
 naturally and spontaneously tell the truth. No one will affirm 
 that the ceremony of administering an oath always secures 
 truthful answers from the witness ; and we venture to say, 
 there is no judge or lawyef, who would not sooner believe 
 the artless relation of his child of five or six years, whom he has 
 never known to tell an untruth, than the oath of an over-age 
 witness Avhose interests or feelings are involved in the cause.* 
 
 * In an old American edition of the famous English compilation, Burns' 
 Justice, (Conductor Generalis, etc., by James Parker, New York, 1788,) we 
 find the following (p. 170, Evidence) : " In many cases an infant of tender 
 years may be examined without oath, where the exigence of the case requires 
 it ; which possibly, being fortified with concurrent evidence, may be of some 
 weight, especially in cases of rape, buggery, and such crimes as are practiced 
 upon children. 2 H. H. (Hale's Hist.) 279, 284; Str. 700." Now a Deaf 
 Mute, as ignorant and uncultivated as Shaw, is almost precisely in the mental 
 and moral condition of a little child.
 
 59 
 
 We see, therefore, no reason why, if such a Deaf-Mute 
 witness should be found incapable of understanding the nature 
 of an oath, that ceremony might not be dispensed with, and 
 his testimony taken, leaving to the jury to judge, from the 
 consistency of his narrative, from confirmatory circumctances, 
 or evidence of others, and from the reputation of the witness 
 among his acquaintances, what degree of credit should be 
 attached to his statements. If it should be established that 
 a Deaf Mute who, for lack of education, cannot understand 
 the nature of an oath, is incompetent to give testimony against 
 those who have wronged him, evidently this most unfortunate 
 class of persons will be at the mercy of the evil disposed. 
 
 The extent to which advocates will push a point of form, 
 like that under consideration, in order to gain an advantage 
 in a bad cause, is strikingly exemplified in another Scotch 
 case cited by Beck, (vol. i, pp. 863-4) : 
 
 "An interesting discussion took place last winter in the 
 High Court of Justiciary, as to whether or not a Deaf Mute 
 was capable of giving evidence. A rape had been committed 
 on a Deaf and Dumb girl, and her evidence was objected to 
 by the counsel for the prisoner, who argued that though it was 
 admitted to the fullest extent, that she had a perfect idea 
 of the existence of a Supreme Being and a future state, and 
 though she might be perfectly convinced of the obligation under 
 which she lay to speak the truth, yet every one had as perfect 
 a knowledge at least of these facts and obligations as she could 
 possibly have, yet their testimony went for nothing unless 
 confirmed by an oath: and as it was obvious she could not 
 give an oath, her testimony must go for nothing." (Dunlap.) 
 
 Such pleading as this is a disgrace to the Scotch bar. To 
 argue that a Deaf Mute, in the rudest state of ignorance, was 
 not a competent witness, because he could not understand the 
 nature and obligation of an oath, seems plausible; but to argue 
 that one who has been educated, and is fully aware of the re- 
 ligious nature and solemn significance of an oath, and of the 
 temporal and eternal consequences of perjury, is not a competent 
 witness, merely because she cannot comply with a mere form, 
 adapted to the use of those who hear and speak, is to outrage 
 every sentiment of justice, every dictate of common sense. We 
 cannot believe the court lent any countenance to such a plea.
 
 60 
 
 Beck docs not, in this place, give the decision; but the case 
 seems to us to have been the same thus mentioned by him (on 
 page 855): "The chief witness in a case of rape was deaf and 
 dumb, but had been instructed, and her intelligence proved by 
 an examination of her teachers." 
 
 In England, it has been decided that a person born deaf and 
 dumb, even if utterly unable to read and write, is competent as a 
 witness, provided he evinces sufficient understanding. This was 
 determined in a case at the Old Bailey, in January sessions, 
 1786, on the trial of one William Bartlett for simple grand 
 larceny. "John Ruston, a man deaf and dumb from his birth, 
 was produced as a witness on the part of the crown. Martha 
 Ruston, his sister, being examined on the voir dire, it appeared 
 that she and her brother had been, for a series of years, enabled 
 to understand each other by means of certain arbitrary signs 
 and motions, which time and necessity had invented between 
 them. She acknowledged that these signs and motions were not 
 significant of letters, syllables, words or sentences, but expressive 
 of general propositions and entire conceptions of the mind, and 
 the subjects of their conversation had been in general confined 
 to domestic concerns and familiar occurrences of life. She be- 
 lieved, however, that her brother had a perfect knowledge of the 
 tenets of Christianity, and was certain that she could communi- 
 cate to him true notions of the moral and religious nature of an 
 oath, and of the temporal dangers of perjury. 
 
 " It was objected by the prisoner's counsel, that although 
 these modes of conveying intelligence might be capable of im- 
 pressing the mind with some simple ideas of the existence of a 
 God, and of a future state of rewards and punishments, yet they 
 were utterly incapable of communicating any perfect notions of 
 the vast and complicated system of the Christian religion, and 
 thence the witness could not with propriety be sworn on the 
 Holy Gospels. The difficulty of arraigning a man for perjury, 
 whom the law presumes to be an idiot, and who is, consequently, 
 incapable of being instructed in the nature of the proceedings 
 against him, was also urged against the admissibility of the 
 witness. 
 
 "But the court overruled the objections, and John Ruston 
 was sworn to depose ' the truth,' and Martha Ruston ' well and 
 truly to interpret to John Ruston, a witness here produced in
 
 61 
 
 behalf of the King against William Bartlett, the questions and 
 demands made by the court to the said John Huston, and his 
 answers to them.' The prisoner was found guilty, and received 
 sentence of transportation for seven years. (Phillips' Law of 
 Evidence, p. 14; Luch's Cases in Crown Law, p. 455.)" 
 
 The only essential difference between this case and the Scotch 
 case, in which .the evidence of John Shaw was rejected, is that, 
 in the case of John Huston, his sister professed to be able to 
 communicate to him by signs " true notions of the moral and re- 
 ligious nature of an oath," whereas the interpreter of Shaw did 
 not believe he could communicate any such ideas to him. Martha 
 Huston might have overrated the capacity of her brother, and 
 McFarlanc might have underrated the capacity of his friend. 
 When we recollect that Shaw could hear and speak to the age of 
 seven, it seems improbable that he should not have retained some 
 notions on religious matters, and on the obligation of speaking 
 the truth, though he might have lost the ability to express them 
 clearly. We are persuaded that a person expert in the language 
 of the Deaf and Dumb, and accustomed to express in that lan- 
 guage the rudiments of moral and religious truth, would have 
 found in Shaw, as well as in Huston, sufficient intelligence and 
 moral sense to admit of his evidence being received. 
 
 We have found but one American case, (Snyder v. Nation, 5 
 Blackford's Reports, 295, State of Indiana,) in which a Deaf 
 Mute's comprehension of the religious obligation of an oath came 
 in question. The action was one for assault and battery, and 
 the plaintiff produced a Deaf Mute as a witness. The compe- 
 tency of the witness being objected to, the court caused him to 
 be examined by means of signs, touching the extent of his know- 
 ledge of the nature of an oath. It appeared that he understood 
 that perjury was punishable by law, but he had no conception of 
 the religious obligation of an oath. The presiding judge, how- 
 ever admitted him to testify, and the interpreter having sworn 
 that he could communicate with him by signs, he was examined 
 as a witness through the interpreter. From this decision an 
 appeal was taken, and Dewers, justice, in affirming the ruling of 
 the judge at the trial, said : " That a witness is deaf and dumb, 
 forms no objection to his admissibility : such a person, who can 
 be communicated with by signs, is a competent witness at the 
 common law, if he has sufficient discretion, and a proper sense
 
 62 
 
 of the sanctity of an oath. But as the statute of Indiana pro- 
 vided that want of religious belief should not affect the compe- 
 tency of the witness, but should only go to his credibility, that 
 that removed the objection to the witness that would otherwise 
 have existed on account of his ignorance of the moral responsi- 
 bility of the oath, apart from temporal punishment." So that it 
 seems, from this decision, that ignorance on the part of a Deaf 
 Mute of the religious obligation of an oath, would exclude him as 
 a witness, except in States, like Indiana and New York, where 
 the religious test is abolished. The extent to which this religious 
 test is sometimes carried, may be judged from an English case 
 decided in 1836. A woman was indicted for the murder of her 
 husband, and their child, a girl of the age of eight years, was 
 brought upon the stand as a witness. It appeared, that before 
 the death of the deceased, the child had never heard of God, had 
 never prayed, knew nothing of a future state of rewards and 
 punishments, or of the nature of an oath ; but, after that event, 
 had been visited by clergymen, who instructed her as to the 
 nature of an oath. When examined by the judge, she answered 
 that she should go to hell if she told a lie ; that hell was under 
 the kitchen grate; but had no other intelligence as to religion or 
 a future state. She was not allowed to testify. (The King v. 
 Rachel Williams, 1 Car. & Pay. 320.)* 
 
 We have before referred to the case of Morrison and Seward 
 (3 Carrington and Payne, p. 127,) which is of interest 
 as giving the views of an English judge, as to the manner in 
 which the evidence of a Deaf Mute should be taken, when he 
 is able to read and write. "In that case an apprentice was 
 called as a witness. He had been born deaf and dumb, and 
 an interpreter was sworn, who put questions to him by signs 
 made with his fingers, f and was answered in the same mode. 
 
 * After the case just cited, the reader may not unprofitably consult an 
 imaginary case reported by Charles Dickens; we refer to the rejection of the 
 testimony of the boy Jo, on the coroner's inquest. (Bleak House, chapter xi.) 
 We hope the time may come when, in other States as well as Indiana and New 
 York, technical objections to "competency" may be done away with, and all 
 the evidence, that a candid man would consider in making up his private 
 opinion, admitted for what it may be worth. 
 
 f Evidently by a Manual Alphabet,
 
 63 
 
 The interpreter said that he spelt every word to the witness 
 completely. It appeared that the witness was able to write. 
 
 Chief Justice Best observed, I have been doubting whether, as 
 this lad can write, we ought not to make him write his answers. 
 We are bound to adopt the best mode. I should certainly 
 receive the present mode of interpreting even in a capital case ; 
 but I think, when the witness can write, that is a more certain 
 mode." 
 
 On this we observe that, where the witness can read and write 
 perfectly well, the process prescribed by the French Code ques- 
 tions and answers in writing is undoubtedly the best mode; but 
 there are very various degrees of skill in written language among 
 educated Mutes; and the greater number of them understand 
 written language more or less imperfectly. There are many 
 Deaf Mutes whose knowledge of written language suffices for 
 simple questions and answers on familiar subjects, who would yet 
 be unable to comprehend, or would misapprehend the wording of 
 many of the questions that would be put before them in a court 
 of justice; and, on the other hand, will fail clearly to express 
 their own meaning in words. The safest way is to provide them 
 with an interpreter capable of explaining what they do not un- 
 derstand when written ; and of interpreting their meaning, when 
 their own skill in written language fails to render it truly.* 
 
 Whether a Deaf Mute appears as a witness or as the accused 
 person, some care and skill are requisite in conducting that 
 preliminary examination in writing which is necessary to deter- 
 mine how far he is conversant with written language. If he 
 answers some questions with evident intelligence, and distinctly 
 intimates that he does not understand others, his examination 
 may be cautiously proceeded with ; though it would be better, if 
 the questions he does not understand are of any importance, to 
 wait for an interpreter. But if he either returns no answer to 
 simple questions, or answers by merely copying the questions, 
 or is found by various trials, (as by varying the phraseology of 
 the questions,)f to answer at random, or as if he only caught 
 
 * Since writing the above, we find our views confirmed by the case of the 
 State of Connecticut vs. DeWolf, which will presently be cited in full. 
 
 f E. g. ask, "Is your father living?" and after a while ask, " Is your father 
 dead?" If he has not understood the questions, he will be apt to give contra-
 
 64 
 
 the meaning of one or two words in the question, then an exami- 
 nation in writing would lead to nothing but mistakes and loss of 
 time, if not to serious injustice to the prisoner through misap- 
 prehension, and an interpreter skilled in communicating Avith 
 the Deaf and Dumb, or familiar with the particular dialect of 
 the individual, is quite indispensable. 
 
 HofFbauer, a German writer on medical jurisprudence, cites 
 the case of one Brunning, an uneducated Deaf Mute, who had 
 killed a cutler with whom he was traveling, and possessed him- 
 self of the cutler's shoes and effects.* Brunning could write a 
 little that is, he could write his own name, and could copy 
 words placed before him. When asked in writing, " What is 
 your name?" he wrote "J. Brunning ;" but when asked, "Is 
 this the place where you killed the cutler?" he merely copied 
 the words. When asked, "Where is your money?" after study- 
 ing the words attentively, he indicated, by expressive gestures, 
 that it had been taken from his pockets by force, as indeed was 
 done when he was arrested. He, probably, merely understood 
 the word money, and that awakened his indignation at the 
 manner in which he had been treated. Other questions were 
 put before him, which, from his gestures, his examiners supposed 
 he understood; but those who, with a better knowledge of the 
 characteristics of Deaf Mutes, read the account of the proceed- 
 ings, will conclude that he merely guessed widely at the meaning 
 from one or two words, or answered altogether at random. For 
 instance, Avhen the question, Who killed the cutler? was written 
 before his eyes, he again wrote his own name, J. Brunning, and 
 at the same time pointed to himself, not as we believe, intending 
 to accuse himself of the murder, though his examiners so received 
 it, but supposing that the question was an invitation to write his 
 name. He had asserted (by signs) that the cutler had taken 
 from him, while he slept, a box and money; and was asked, 
 "Whether the sack shown to him was the same he had taken 
 from the man who had stolen from his pocket?" the examiners, 
 and even Hoffbauer in commenting on the case, supposed he 
 
 dictory answers. This is for such questions as only require a yes or no. With 
 some other questions, as: "How old are you?" "What is your trade?" 
 "How long has your father been dead?" etc., the answers will at once show 
 whether the question was understood. 
 
 * This case occurred in December, 1764, in the Duchy of Magdeburg.
 
 65 
 
 understood the question, because, on being invited to take "what 
 belonged to him, he carefully examined the box, and separated 
 his own effects from the rest; but Dr. Itard of Paris, in a note 
 on this passage, observes with reason, that no imperfectly 
 educated Deaf Mute could clearly understand a question thus 
 complicatedj and loaded with pronouns. Brunning merely fol- 
 lowed his instinct in claiming the box, and separating his own 
 effects from the rest, without having any idea of the precise 
 scope of the question placed before him. We have cited this 
 case as an illustration of the danger of mutual misunderstand- 
 ings in an examination by writing of a Deaf Mute who can only 
 read and write very imperfectly. 
 
 It may sometimes happen that a Deaf Mute criminal may, 
 from a hope of escaping punishment, feign to know much less of 
 writing than he does. He may be aware that ignorance, especi- 
 ally in his circumstances, excites compassion, and is held in 
 some measure to excuse faults. In such cases, Dr. Itard advises 
 to accuse him of a crime much more serious than, and altogether 
 different from that actually charged against him. If he can 
 really read and write, his surprise and indignation will break out 
 at the false charge in a manner to show what degree of skill in 
 written language he actually possesses.* 
 
 We will close this branch of the subject by giving at length 
 an important case already referred to, the State of Connecticut 
 v. De Wolf, (8 Conn. Rep. 93,) as it relates not only to the 
 manner of examining this class of witnesses, but includes other 
 matters, touching their character, and the nature and effect of 
 their testimony. The prisoner De Wolf (a young physician) 
 was indicted for an attempt to commit a rape upon the person of 
 a deaf and dumb girl, named Celestia Bull,f on the 15th of June, 
 1828. She was sworn as a witness, and testified to the princi- 
 pal facts by signs, which were interpreted by Wm. W. Turner, a 
 teacher in (and now the principal of) the American Asylum for 
 the education of the Deaf and Dumb. The interpreter testified 
 
 * Note to Iloffbauer's Medicine Ltgale, Paris edition, 1827, page 223. (Trans- 
 lation of M. Chambeyron.) 
 
 f It may be proper to observe that Celestia was deaf from the age of two 
 years, but that those who are deaf from so early an age, do not differ apprecia- 
 bly from those deaf from birth. 
 
 5
 
 66 
 
 that Celestia had resided in the Asylum for five years ; that 
 she was well acquainted with the language of signs, and capable 
 of relating facts correctly in that manner ; that she could read 
 and write, and communicate her ideas imperfectly by writing. 
 It was objected on the part of the prisoner that she should not 
 be allowed to testify by signs, but ought to give her testimony in 
 her own words in writing, but the judge overruled the objection, 
 and she was allowed to testify by signs. After the prisoner's 
 counsel had cross-examined her in relation to the principal fact 
 charged, and she had returned answers that went to discredit her 
 testimony.* the public prosecutor, before any attempt was made 
 to discredit her otherwise than by such cross-examination, offered 
 Polly Rowley as a witness to prove that Celestia had communi- 
 cated to her the same story which she had related upon the trial. 
 The prisoner's counsel objected, but their objection was overruled. 
 Polly Rowley was then put upon the stand, and testified that in 
 the fall of 1829, Celestia had communicated to her in writing 
 the substance of what she now testified to upon the trial, but that 
 she, the witness, did not know where the writing was. The 
 prisoner's counsel objected to this testimony, unless the writing 
 was produced and read to the court ; but the objection was over- 
 ruled. The public prosecutor then offered to prove that the 
 general character of Celestia for truth was good : the prisoner's 
 counsel objected, but the testimony was received. I think, said 
 the presiding judge, that in prosecutions for rape, the general 
 character of the witness who is the victim of the outrage may 
 always be shown ; but, said he, without deciding this point, let us 
 look for a moment at the condition of this woman. She may 
 fitly be said to be a stranger in her own neighborhood. Unable 
 to hear or speak, she is excluded from society, and can be known 
 only to a few of her relations and companions in affliction. Had 
 the outrage been sworn to by a stranger passing transiently 
 through the State, it would certainly have been proper for the 
 State's attorney to prove the character of the witness. I think 
 therefore, upon similar principles, that it was proper to support 
 the character of this witness. The prisoner's counsel then at- 
 
 * The questions on the cross-examination were put in signs through another 
 teacher of the Asylum, Rev. Mr. Brinsmate, who had been induced to attend 
 the trial in behalf of De Wolf.
 
 6T 
 
 tempted to discredit the prosecutor's testimony, by showing that 
 she had given different accounts of the transaction on oath and 
 in writing;* and Celestia having sworn that she had concealed 
 the transaction for more than a year, assigning as a reason for 
 it, the threats and influence of the prisoner, and her fear of him, 
 the public prosecutor offered to show that the Deaf and Dumb 
 have a sense of inferiority to other people, and that, as a class, 
 they are easily intimidated ; that they are credulous, sincere and 
 submissive, and that this was the character of Celestia. The 
 prisoner's counsel objected to the evidence, but the court ad- 
 mitted it. The prisoner having been convicted, an application 
 was made to the Supreme Court for a new trial, on the grounds : 
 1st, that the court below erred in allowing the witness Celestia to 
 testify by signs : 2d, in allowing evidence of her written commu- 
 nication to Polly Rowley, without the production of the paper, 
 or proof that it could not be found after diligent search : 3d, in 
 receiving the testimony just referred to as to the sense of infe- 
 riority felt by the Deaf and Dumb as a class, and their credulous 
 and submissive character, &c. 
 
 In respect to the admissibility of this evidence, the court were 
 divided. Justice Peters thought that the court below were right 
 in receiving it ; but Justice Dagget, and the three other judges 
 thought otherwise ; Dagget, who delivered the opinion of the 
 majority, saying that they thought this decision on the trial er- 
 roneous, as opening a door for enquiries interminable, and where, 
 after all, no satisfactory result can be obtained. But in respect 
 to the examination of Celestia by signs, he said, the other judges 
 concurring, it appeared she could communicate her ideas imper- 
 fectly by writing, but was capable of relating facts correctly by 
 signs. The objection then, thus viewed, presents the absurdity, 
 that the court erred in resorting to the most perfect mode of as- 
 certaining the truth. The mode of examination adopted by the 
 court was the next best to an oral examination, which, for many 
 obvious reasons, is preferable to an examination in writing, but 
 which could not be had in this case, from the condition of the 
 witness. A new trial was ordered for the error of the court be- 
 low, in receiving the testimony as to the contrast between the 
 
 * If this was so, it may have merely proceeded from her imperfect skill in. 
 written language.
 
 68 
 
 Deaf and Dumb and other people in the matters referred to ; 
 and in allowing evidence of the contents of the written paper 
 without producing it, or showing that it could not be found after 
 a diligent search.* 
 
 This case is an authority for assuming and declaring it to be 
 the law, as it certainly is the dictate of reason, that in the exam- 
 ination of a Deaf and Dumb witness, that mode is to be adopted 
 which will enable the witness most accurately to convey his 
 ideas. To which we would add, for the reasons already given, 
 that as a general rule (exceptions have been noted on previous 
 pages,) an examination by signs through a competent interpreter 
 is preferable to any other mode. 
 
 In regard to the other questions raised on this trial, there is 
 room for difference of opinion. It appears to us that the rule 
 of law which precludes parol evidence of the contents of a 
 written paper, except upon proof that the paper is lost, should 
 not be as stringently enforced in the case of conversations held 
 by a Deaf Mute in writing as in other cases. A Deaf Mute who 
 expressed her ideas, as was the case with Celestia, but imperfectly 
 in writing, would, at the time of writing, explain and enforce her 
 meaning by accompanying looks and gestures. Hence the ac- 
 tual impression made by the communication at the time, might 
 be quite different from that which the mere writing would con- 
 vey, especially to one not conversant with the peculiar idioms of 
 the Deaf and Dumb. The writing would be but a part of the 
 actual communication. In such a case, supposing that Polly and 
 Celestia as from the circumstance of the former being a selected 
 confidant is a natural inference were intimate, and understood 
 each other perfectly, it is evident that the parol evidence of 
 Polly would give a more correct idea of the purport of Celes- 
 tia's communication than would be derived from a mere inspec- 
 tion of the writing itself, supposing it could be found ; and it 
 was probably a loose scrap of paper, thrown aside when the con- 
 versation ended. If, therefore, (which however does not clearly 
 appear from the report, but is very probable from the circum- 
 stances, Celestia's imperfect acquaintance with written language, 
 and the delicate nature of her communication, not to be easily 
 
 * It is our impression that the prosecution was dropped. Miss B. has since 
 married a Deaf Mute.
 
 69 
 
 put wholly in words by one little skilled in written language,) if 
 therefore, the communication from Celestia to Polly was by wri- 
 ting in part, explained by looks and gestures, the very princi- 
 ple which required the examination of Celestia by signs, would 
 consider the evidence of Polly as to the purport of the communi- 
 cation as of more weight than the writing itself; it would be in 
 the language of Justice Dagget, " the most perfect mode of as- 
 certaining the truth" that the peculiar case would admit. 
 
 With regard to the alleged credulous, submissive, and timid 
 character of the Deaf and Dumb, two distinct questions arise : 
 the admissibility of such evidence, and the correctness of the 
 opinion expressed by Mr. Turner. We will consider the last 
 first, as it seems proper to enquire whether we have any thing to 
 prove, before we enter into a dispute about the introduction of 
 our evidence. 
 
 We need hardly say that there are no peculiar traits of 
 character inherent in the Deaf and Dumb, as such, merely as 
 developments of some peculiarity of organization. What pecu- 
 liarities they do display are the results of the peculiarities of 
 their circumstances. They are comparatively ignorant, from 
 the greater difficulty of obtaining knowledge; and if they are 
 credulous, it is because credulity is usually in proportion to 
 ignorance. He who usually hears but one side of a story, be- 
 lieves what he hears ; he who hears all sides, learns to doubt, 
 and to weigh probabilities. The Deaf and Dumb must feel, in 
 society, a sense of inferiority, which makes them dependent and 
 submissive towards those in whom they have confidence as guides. 
 It is the same feeling that would make a blind man in a crowd, 
 or in a strange locality, cling to the arm of a friend who enjoys 
 eyesight. But where they think themselves acquainted with 
 the ground, they are apt to display sufficient strength of will ; 
 indeed, willfulness is one of the most salient faults of a neglected 
 or petted Deaf Mute, as of other neglected or petted children. 
 Timidity is, we think, not a trait of their character. A man 
 who recoils from a haunted house, may show as much courage as 
 others who do not share that feeling, when there is a real, visible 
 danger to be met ; and if Deaf Mutes are liable to be intimi- 
 dated, it is to be ascribed to their ignorance, exaggerating the 
 power of him who attempts to intimidate them, and riot forseeing 
 as readily as others would the means of defence.
 
 70 
 
 It is obvious that, for Deaf Mute girls, the chances for form- 
 ing a desirable marriage are much fewer than for their sisters 
 and companions of equal or even inferior personal attractions, 
 while the hope and desire of such an event is at least equally 
 strong. Hence, they are apt to interpret as serious, to encourage 
 by receiving them with evident gratification, attentions which 
 had no worthier motives than curiosity and compassion, and 
 which are continued merely because the flirtation is agreeable. 
 De Wolf, we have understood, won the confidence of Celestia by 
 his readiness in learning to converse with her by the manual 
 alphabet and signs. A Deaf Mute, isolated in society, is pecu- 
 liarly susceptible to attentions which at once flatter her vanity, 
 increase her social enjoyments, and relieve the painful sense of 
 inferiority to her speaking companions. He probably acquired 
 an influence over her ; and having, in some moment of tempta- 
 tion, gone farther than he wished to have known, it is very 
 natural and probable that he should exert whatever influence her 
 hopes, her fears, and her ignorance gave him, to induce her to 
 keep the transaction secret. 
 
 If the ignorance of the Deaf and Dumb, their imperfect appre- 
 ciation of consequences, and the difficulty for them of finding 
 sympathy and judicious advice in delicate circumstances, have, 
 as we believe, a tendency to induce want of moral strength in 
 the way of appreciating and resenting such injuries as that in 
 question, this should surely not make them the less worthy of 
 or less needful of the protection of the law. It certainly ap- 
 pears to us that the rule of the law, that makes so long a silence 
 after such an outrage, a presumption against the credibility of 
 the witness, might be somewhat relaxed in circumstances like 
 these. If it appeared that the injured woman was ignorant 
 or doubtful of the consequences of disclosure, feared injury to 
 herself in character and feelings, or had no intimate friend to 
 whom she could feel free to confide such a secret, or who was 
 capable of urging those reasons that lead us to prosecute offences 
 for the good of society, or for the abstract interests of justice ; 
 under such influences it does not appear to us that her silence 
 should make against her credibility, if her statements are other- 
 wise consistent and probable. If the Deaf and Dumb are enti- 
 tled to sympathy and consideration on account of their misfor- 
 tune, the ignorance and want of moral strength, which are
 
 Tl 
 
 the natural result of that misfortune, ought also to be con- 
 sidered. 
 
 We might extend our remarks on this point, had we such a 
 report of the case as would show distinctly the reasons on which 
 the admission of this evidence was pronounced an error. Since 
 the ruling of the court below was supported by one out of five of 
 the justices of the Supreme Court, there would appear to be some 
 doubt on this matter, and it seems to us worthy of a fuller ex- 
 amination. We imagine the objections of De Wolf's counsel 
 were taken under the impression that their client's cause was 
 sufficiently prejudiced by the natural sympathy of a jury for a 
 woman in her unhappy circumstances, and that the introduction 
 of the evidence in question would augment that prejudice to a 
 degree that might lessen his chance of a fair trial.* 
 
 We will now proceed to the examination of the question, how 
 far Deaf Mutes are responsible for their acts criminally, and will 
 direct our inquiries first to the common law upon the subject, 
 that being the law of this country and of England, where it has 
 not been altered by statutory regulations. 
 
 By the mode of trial adopted under the common law, a man, 
 when arraigned for a criminal offence, must answer whether he 
 is guilty or not guilty ; for if he admits himself to be guilty, no 
 trial is necessary, and judgment passes against him at once. 
 Now, it is impossible for a mute to comply with this regulation , 
 and hence, at a very early period in the history of the English 
 law, it was found necessary to ascertain whether a person so 
 arraigned, stood mute from perverseness, or through the visita- 
 tion of God ? This standing mute through perverseness was re- 
 garded as an offence to be punished with the greatest severity ; 
 because, as the law then stood, a person indicted for any offence 
 under treason could not be convicted, unless he had plead, that 
 is, admitted or denied his guilt; and, without a conviction, there 
 could be no escheat or forfeiture of his lands. One accused of 
 crime, therefore, who knew that the evidence of his guilt was 
 ample, and that conviction must inevitably follow upon his trial, f 
 
 * In this case, the second trial ordered by the court resulted in an acquital. 
 
 f And we add one innocent of the crime charged, who knew that from the 
 power of his accusers, or the prejudice against him, he had no chance for a fair 
 trial, as was the case with old Giles Cory, in the evil days of the Salem Witch-
 
 72 
 
 had a temptation to stand mute, as thereby his land would be 
 preserved to his heirs, and not escheat to his lord or the crown. 
 It was, therefore, the object of the law to extort from such per- 
 sons a plea that would subject them at once to judgment, or put 
 them upon their trial, and, with that view, punishment more 
 rigorous and cruel than the immediate infliction of death was 
 resorted to, to compel an answer. The prisoner was remanded 
 back to prison, and left to starve to death, unless he answered. 
 This horrible punishment was in some degree mitigated by a 
 statute of Edward I, (3 Edw. I, c. 12,) at least so as to lessen 
 the duration of the prisoner's sufferings."* By the practice 
 under that statute, he was "put in a low dark room, laid upon 
 his back, without any covering except for his privy parts, and 
 as many weights were laid upon him as he could bear. On the 
 first day, three morsels of the worst bread were given him ; on 
 the second day, three draughts of standing water;" and so on, 
 alternately, he was supplied with this quantity of bread one day, 
 and of water the other, and kept in this condition till he died, 
 or, as the judgment ran, until he answered. This most barbarous 
 statute, though long fallen into disuse, was not repealed till the 
 reign of George III, when it was enacted that persons willfully 
 refusing to plead, should be taken and deemed to have plead 
 guilty. This barbarous punishment of the "peine forte' et dure" 
 was one of those relics of feudal abuses swept away, in most of 
 the American States, soon after the Revolution. f 
 
 There is, we have the satisfaction of believing, no reason to 
 suppose that those deprived by nature of the power of speech 
 were, through ignorance or judicial mistake, subjected to this 
 terrible punishment, for it appears that as early as the reign 
 of Henry III, it was provided that if the prisoner stood mute, 
 the court should immediately summon a jury to try if he stood 
 mute through obstinacy, or by the visitation of God ; and this 
 
 craft, by a "barbarous usage," says the historian Bancroft, "never again fol- 
 lowed in the colonies, he was pressed to death for refusing to plead." 
 
 * If a sentence to be racked to death can be considered a mitigation of one 
 to be simply starved to death. 
 
 f It was enacted in New Jersey, in 1795, " That the law relative to the peino 
 forte" et dure shall be and hereby is abolished." (Paterson, 163.) Probably, if 
 any case had occurred in which it had been enforced, it would have been 
 abolished sooner.
 
 73 
 
 was afterwards made obligatory upon the court by statute, (8 
 Henry IV, 2.) If the jury found that he remained mute from 
 natural infirmity, a plea of not guilty was recorded, and it 
 became the duty of the court to act as his counsel, and see that 
 he had law and justice a practice which has continued down 
 to our own time. See the case of the Commonwealth of Massa- 
 chusetts v. Bradley, (1 Mass. Rep. 103,) where a prisoner 
 indicted for the murder of his wife stood mute, and a jury was 
 empanneled who found that he did so by the visitation of God. 
 And see The King v. Pritchard, 7 Car. & Pay. 303; The 
 King v. Dyson, ibid, 305, u. a. In the State of New York, 
 this inquest by a jury is superseded by the provisions of the 
 Revised Statutes, (2 R. S. 730, 70,) that if a prisoner does 
 not confess himself guilty, a plea of not guilty is recorded, and 
 he is put on his trial. 
 
 What was done in the early days of the English law, where 
 it was found that a prisoner stood mute by visitation of God, 
 does not distinctly appear. Brooke, whose work was published 
 in 1576, states the case of a man arraigned for felony in the 
 reign of Edward III, who could neither speak nor hear, who 
 was, therefore, remanded to prison. (Brooke's La Grande 
 Abridgment, Title Crown, 107, 217.) The case mentioned by 
 this writer is probably the one referred to in the Year Books, 
 where, from the very brief report that is given, (Book of Assize, 
 xxvi, 27 ; 26 of Edw. Ill,) it appears that Skip, Justice, informed 
 his brethren that he had a case at the circuit of a man indicted 
 for murder, who could neither speak nor hear ; and it would 
 seem that the court did not know what to do in such a case, and 
 finally concluded to remand the man back to prison, upon the 
 statement of Hill, Justice, that he had a case in which a man 
 who was mad, furioses enrage, slew four men, and that he 
 would not arraign him, but sent him back to prison, where he 
 remained until the king pardoned him. Upon the authority 
 of this case, Crompton, in his work on the authority and juris- 
 diction of courts (1594,) expresses a doubt whether a man un- 
 able to speak or hear could be put upon his trial for a criminal 
 offence, by reason of his inability to plead to the arraingment ; 
 and how the law stood in such cases, down to the reign of 
 Charles II, we are unable to state. By the common law, no 
 man can be held accountable, criminally, for his acts, who, from
 
 74 
 
 natural infirmity, is incapable of distinguishing between good 
 and evil., (2 Hawkins' Pleas of the Crown 2, note 2 ; 1 Hale, 
 34 ; ) but the Deaf and Dumb, though they may be in this 
 condition, are not necessarily so, as a consequence of their in- 
 firmity, and any positive rule of law founded on that presump- 
 tion, would be erroneous. Whether a Deaf Mute is in this 
 condition or not, is not a question of law, but a question of 
 fact, to be ascertained in each particular case. In the cele- 
 brated work of Sir Matthew Hale upon the Pleas of the Crown, 
 which did not appear till after his death in 1676, we find the 
 law on this point stated more intelligibly and rationally than 
 seems to have been the case before his time. "A man," says 
 this great lawyer, " who is surdus et mutus a nativitate, is, in 
 presumption of law, an idiot, the rather because he hath no 
 possibility to understand what is forbidden to be done, or under 
 what penalties. But if it appear that he hath the use of under- 
 standing, which many of that condition discover by signs to a 
 very great measure, he may be tried, and suffer judgment and 
 execution, though great caution is to be used therein." (Halo's 
 P. C. 34.) And the view thus taken of the law by this eminent 
 judge was sustained in cases subsequently adjudged. The 
 question came up directly for decision in a case which occurred 
 at the old Bailey in 1773, before Mr. Justice Blackstone, the 
 celebrated author of the Commentaries. A man named Jones 
 was indicted for felony. Upon being put to the bar, he ap- 
 peared to be deaf and dumb. A jury was accordingly empan- 
 neled, who found he was mute through the visitation of God, 
 but it appearing that he was in the habit of communicating his 
 ideas to a woman of the name of Fanny Lazarus, she was sworn 
 and examined as to the fact of her being able to make the 
 prisoner understand what she said, and it appearing that he 
 was capable of receiving intelligence from her by means of signs, 
 he was arraigned, put upon his trial, convicted and transported. 
 (The King v. Jones, 1 Leach's Crown Cases, 102.)* 
 
 To the same effect was the decision in the case of Elizabeth 
 
 * Would there have been any remedy on the part of the prosecution if the 
 prisoner's intimate friends had refused to fulfill this unfriendly office of inter- 
 preter, thus aiding to procure the transportation, or possibly hanging cf their 
 friend and relative ?
 
 75 
 
 Steele, (Leach's Crown Cases, 451.) She was indicted for 
 grand larceny, and standing mute, a jury was empanneled, who 
 found that she was mute by the visitation of God. She was 
 then remanded to prison, and the question was submitted to all 
 the judges whether or not she could be put upon her trial for the 
 offence. The judges accordingly assembled to consider the case, 
 and were of opinion that the verdict of mute by visitation of 
 God was no bar to her being tried upon the indictment ; for they 
 declared that although a person surdus et mutus a nativitate, is, 
 in contemplation of law, incapable of guilt upon a presumption 
 of idiotism, yet that presumption may be repelled by evidence 
 of that capacity to understand by signs and tokens, which it is 
 known that persons thus afflicted frequently possess to a very 
 great extent ; that great diligence and circumspection, however, 
 ought to be exercised in so critical a case ; and that if all means 
 to convey intelligence to the mind of such a person, respecting 
 the nature of the arraignment, should prove ineffectual, that the 
 clerk might enter the plea of not guilty, and it would then 
 become the duty of the court to inquire of all those points 
 of which the prisoner might take advantage, to examine all the 
 proceedings with a critical eye, and to render to the prisoner 
 every possible service consistent with the rules of law. 
 
 Upon this decision being given, the prisoner was again ar- 
 raigned before Mr. Justice Heath, and when the clerk put the 
 question to her whether she was guilty or not guilty, she an- 
 swered "You know I cannot hear." The judge, upon the sup- 
 position that she could hear, said, " Your case has been consid- 
 ered by all the judges, and they think, even though you cannot 
 hear, that you should be tried on the indictment ; it will there- 
 fore be in vain for you to elude arraignment by pretended deaf- 
 ness, for you will lose by such pretence the advantage of putting 
 questions to the witness." But all endeavors proving ineffectual, 
 a jury was (again) sworn to say if she stood mute by visitation 
 of God, and having pronounced that she did, the same jury 
 were then sworn in chief to try her, and the evidence being very 
 clear, she was found guilty, and sentenced to transportation for 
 seven years. It would seem from the statement that the woman, 
 when asked "Are you guilty or not guilty?" answered, "You 
 know I cannot hear," that she had lost her hearing at so late an 
 age as to retain the faculty of speech ; yet from the difficulty of
 
 76 
 
 communicating with her, we may presume she could neither read 
 writing nor read on the lips. While the case of Jones shows 
 that under the common law, a Deaf Mute from birth, yet not an 
 idiot, may be arraigned and tried, if one can be found capable 
 of communicating with him by signs, this case of Elizabeth 
 Steele indicates as we understand it, that even if there be no 
 means of communicating to the deaf and illiterate prisoner, yet, 
 if he appear capable of distinguishing between right and wrong, 
 he may be tried, the court taking care that justice is done him; 
 and if found guilty is liable to the same punishment as one pos- 
 sessed of all his senses. We are constrained to suppose that 
 this woman must have been a notorious and inveterate offender, 
 else the penalty inflicted, seven years' transportation for simple 
 theft, seems unreasonably severe for one in her circumstances, to 
 whom imprisonment or transportation, separating her from all 
 with whom she could hold intercourse, must have been far more 
 severe a punishment than for those not so afflicted. While, there- 
 fore, we cite these cases to show that it is the law in England 
 and in the United States that Deaf Mutes are, when they evince 
 an intelligence and ability to distinguish between right and wrong, 
 responsible to the law criminally, and may be put upon trial, 
 notwithstanding the difficulties presented by the forms of pro- 
 ing, we would urge that their unfortunate and peculiar cir- 
 stances should be taken into consideration to secure mitiga- 
 tion or even remission of punishment, so far as the one or the 
 other may be judged consistent with the ultimate good of the 
 unfortunate prisoner on the one hand, and of society on the 
 other. 
 
 We recollect two or three cases occurring in New York and 
 New England, in which Deaf Mutes were arraigned for criminal 
 offences; but have not the particulars. We will, however, cite 
 from Beck's Medical Jurisprudence, the case of Timothy Hill, 
 indicted for larceny in Massachusetts. As in the English case 
 of Jones, resort was had to an interpreter who understood his 
 signs. One Nelson, an acquaintance of the prisoner, was sworn 
 to interpret the indictment to him, as it was read by the clerk, 
 which he did, "by making signs with his fingers;" after which 
 the court ordered the trial to proceed, as on a plea of not guilty. 
 The report of this case is too brief and defective to enable us to 
 judge what degree of intelligence Hill possessed, or whether
 
 77 
 
 the "signs on the fingers" were gestures, words spelled by a 
 manual alphabet, or a mixture of both. 
 
 The provisions of the common law respecting those who stand 
 mute, have been incorporated in the statutes of some of the 
 States as for instance, in Ohio and New Jersey without any 
 provision for the case of the Deaf and Dumb. The statutes in 
 question direct that where the prisoner is found to stand mute by 
 visitation of God, he shall be remanded to prison, and not pro- 
 ceeded against till he shall have recovered. We presume, how- 
 ever, this provision would not be held to be applicable to the 
 Deaf and Dumb, in whose case there can be no expectation of 
 recovering the faculty of speech ; and therefore the rule of the 
 English common law, already stated, will remain in force, not- 
 withstanding the omission to provide for the case of the Deaf 
 and Dumb in the statutes in question. 
 
 I A more unsettled question under the common law, is whether 
 judgment of death can be pronounced against a Deaf and Dumb 
 person when convicted of a capital offence. It seems to have 
 been doubted, as they have not pleaded to the indictment, and 
 can say nothing in arrest of judgment. (4 Blackstone, 324 ; 2 
 Hale's P. C. 317.) Both Hale and Blackstone appear to have 
 been in doubt upon the subject, and where such authorities have 
 hesitated, an opinion is not to be expressed lightly. But it seems 
 to us that if a man is held to be sufficiently accountable to be 
 put upon his trial, and to be convicted of a capital offence, that 
 it follows, from the same reason of accountability, that he should 
 suffer the punishment. If he is not responsible for what he has 
 done for want of capacity to distinguish between good and evil, 
 right and wrong, he is not to be convicted ; but if he is con- 
 victed, it is a finding on the part of the jury that he is account- 
 able in a criminal sense, and if he is, there seems to be no rea- 
 son why he should not suffer the punishment consequent upon 
 his willful acts. It is declared by the conviction that he com- 
 mitted an act, the nature of which he comprehended as well as 
 those who are possessed of the faculties of speech and of hear- 
 ing, and if he is not to be punished for it, why convict him at all ? 
 If he cannot be punished, because he is unable to hear, plead or 
 speak in arrest of judgment, (things which under an amended 
 system of proceedings, he may do by his counsel,) why put him 
 upon his trial ? Why not stop the proceedings at once, as was
 
 78 
 
 i 
 
 the case in the early state of the English law, when it is ascer- 
 tained that he cannot hear what takes place, or speak for him- 
 self. Either the mere fact that he is deaf and dumb exempts 
 him from all accountability to the law, whatever may be the 
 degree of his intelligence or of his capacity, or it does not ; and 
 if it does not, but if he is accountable by reason of his capacity 
 to discriminate right from wrong, then, like any other human 
 being, he must suffer the consequences of his willful act. The 
 doubt entertained upon this subject springs out of the tenderness 
 of the law towards the accused, where death follows conviction, 
 and the strictness with which it insists on the due observance of 
 every formality in such cases. The law provides that a prisoner, 
 convicted of a capital offence, should be asked, before his doom is 
 pronounced, if he has anything to say why final judgment judg- 
 ment of death should not be rendered against him. The reason 
 given for this proceeding (The King v. Speke, 3 Salkeld's 
 Reports, 358 ; 3 Mod. 265,) is that he may have a pardon to 
 plead, or because he has the right at any time after the verdict, 
 and before sentence, to move in arrest of judgment, if any 
 ground exist for such motion such a motion admitting all the 
 proceedings upon the trial, but assuming or insisting that upon 
 the face of the record itself, the judgment which the court is 
 about to pronounce would be erroneous. In addition to which, 
 the practice is adhered to, that the prisoner may have an oppor- 
 tunity to address the court in mitigation of his conduct, to 
 desire their intercession with the pardoning power, or to cast 
 himself on their mercy, appeals that are sometimes followed 
 by the recommendation on the part of the court to the executive 
 for a pardon or commutation of the prisoner's punishment. But 
 justice is not to fail because a Deaf Mute, convicted as a respon- 
 sible being, cannot make this appeal, or hear or respond to the 
 enquiry put to him. If he is able to converse by signs or by 
 writing, the question may be put to him, and answered in that 
 mode. But if he is not able to understand the question, even 
 put in signs, it seems to result that punishment must still follow 
 conviction, to the disregard of a form, compliance with which is 
 impossible. It is not to be supposed that any Deaf-Mute 
 person, wholly deprived of the power of communicating with 
 any one by signs or otherwise, shut out by Providence from 
 all communication with his kind, would be convicted by any
 
 79 . . 
 
 jury for a criminal act, as a responsible being. A Deaf Mute 
 is, in presumption of law, an idiot, not punishable criminally for 
 his act, until it is shown that he is endowed with sufficient in- 
 telligence to enable him to discriminate between right and 
 wrong, and the burden of showing this is upon those who prose- 
 cute him, or seek to bring him to justice. It is impossible to 
 know this, unless there is some means of communicating with 
 him, to ascertain what his ideas are, or the nature and degree 
 of his intelligence ; and if means exist for ascertaining that, 
 sufficiently to satisfy a jury that he knew perfectly well what he 
 did, and that he did it animo felonico that is with a willful, or 
 felonious intent, the same means can be employed for ascer- 
 taining his views upon the question put to him by the court, 
 why judgment should not be pronounced against him. That is, 
 the amount of evidence which would be sufficient to satisfy a 
 jury that he had the requisite intelligence to make him accounta- 
 ble for his acts, would equally establish that he had sufficient 
 capacity to understand the nature of the enquiry propounded 
 by the court, and to avail himself of anything that he might 
 think could prove serviceable to him. (And it follows that if he 
 evidently has not the capacity to do this, the jury should find 
 that he had not the capacity to commit the crime charged.) It 
 has been shown moreover that, in all such cases, it is made the 
 especial duty of the court to do all for him that he might do for 
 himself; to examine all the proceedings with a critical eye, to 
 look for every point of which he might take advantage, to pro- 
 ceed with the greatest circumspection, and, in short, to render 
 him every possible service, up to the very moment when judg- 
 ment is rendered against him, that can be done consistently 
 with the rules of law. There is little reason, therefore, to 
 apprehend that any Deaf Mute would be convicted and sen- 
 tenced upon a capital charge, without having every advantage that 
 any other prisoner would have upon a capital charge, except 
 that important one of hearing, like ordinary persons, all that 
 transpires on his trial,* and of addressing the court by the 
 
 * When we recollect how important is this privilege to the prisoner, of hear- 
 ing the evidence against him, as in many cases he alone can give a clue to 
 clear up circumstances that make against him, we would strongly insist that, 
 where a Deaf Mute is tried, all the leading points, at least of the evidence and 
 pleadings, ought to be communicated to him, either by signs or by writing.
 
 80 
 
 faculty of speech. If a Deaf Mute has committed murder if he 
 has taken life willfully, intentionally that is, with what the law 
 denominates malice aforethought he is not to escape the punish- 
 ment with which the law visits the perpetrator of such a crime, 
 because he is deprived of the faculties of hearing and speech. 
 Every thing is to be done for him in the course of his trial, 
 and up to the moment that sentence of death is passed upon 
 him, that can possibly be done for a person laboring under 
 such an infirmity ; but he is not to escape the punishment due to 
 his crime, because a form cannot be gone through with on the 
 part of the court, which necessarily could only be intended to 
 apply to cases where such a procedure was possible. If it is 
 supposable that a Deaf Mute would be convicted of a capital 
 offence, the punishment of which was death, who could not be 
 brought to comprehend the nature of the enquiry put before 
 sentence, then all that can be said is, that his incapacity to 
 comprehend would be no barrier to the right and duty of the 
 court to pass sentence upon him. In every case, the enquiry 
 should be put and interpreted to the prisoner, and his answer, 
 if any, interpreted to the court. If he cannot, or if he will not 
 be made to understand it for want of comprehension would very 
 naturally be assumed by a prisoner so situated, if he thought 
 thereby that he could save his life then the duty of the court is 
 to proceed and pass sentence upon him. If the court are of 
 opinion that the jury were wrong in convicting him, they can 
 defer sentence, unless restricted to pronounce it within a certain 
 time, until the prisoner's case can be laid before the executive 
 for pardon ; but if the executive will not interfere, the court 
 must pronounce judgment, and order execution. 
 
 It follows from this reasoning, supplied to us by an eminent 
 judge, that as the verdict of the jury, pronouncing the Deaf- 
 Mute prisoner guilty of the crime charged, also pronounces that 
 he had sufficient capacity to commit the crime, therefore this 
 question of capacity is one of the points they are to take into 
 consideration. We would suggest, as a question worthy of the 
 consideration of criminalists and jurists, whether, as the mind 
 naturally revolts from inflicting the extreme punishment of death 
 upon one already laboring under an infliction so worthy of com- 
 passion, whether a distinction cannot be made between the capa- 
 city to commit greater and less crimes ; whether it might not be
 
 81 
 
 adjudged, for instance, that a Deaf Mute without instruction, 
 who knows nothing of the divine, and very little of the human 
 laws against crime, but whose passions make him dangerous to 
 society, may not be adjudged capable of committing murder in 
 the second, but not in the first degree. We know of no case, 
 under English and American law, in which a Deaf Mute has 
 been capitally convicted. In the few cases of a capital charge 
 against such persons, to be hereafter cited, the proceedings were 
 stayed on points of form. The provision of the French law, 
 which empowers the jury to return a verdict of "Guilty, with 
 extenuating circumstances," of which we shall hereafter give in- 
 stances, thus, by saving the life of the prisoner, reconciling con- 
 science with compassion, appear to us more rational than the 
 practice under our common law. 
 
 To make this view of criminal jurisprudence, as regards the 
 Deaf and Dumb, as complete as possible, we will give an account 
 of the views entertained in Germany, and of the law as there 
 established, respecting the legal responsibility of the Deaf and 
 Dumb, translated from the work of Henke, one of the leading 
 German writers on medical jurisprudence. (Lehrbuch der Gre- 
 richtlichen Medccin, von Adolph Henke. Stuttgard, 1832: 7th 
 edition, 289, 290, 291.) "As it must always be a question of 
 doubt whether the Deaf and Dumb are responsible beings, where 
 they have committed illegal acts, their mental condition should 
 be ascertained in most cases through the instrumentality of 
 teachers of the Deaf and Dumb, educated in private or public 
 institutions, as this class of persons can more readily and satis- 
 factorily enquire into the facts than legal physicians,* as they 
 are more familiar with the condition of such persons, with whom 
 they come constantly into contact, or the teacher at least should 
 be consulted by the legal physician. ( 290.) Under the de- 
 nomination of Deaf and Dumb are comprised not only the Deaf 
 who cannot speak, but those who have learned to speak more or 
 less, and those who have lost their hearing too early to acquire 
 language in the ordinary way. In consequence of the imperfec- 
 tion of their senses, the Deaf and Dumb must invariably be defi- 
 
 * In Germany, physicians, denominated legal physicians, are appointed by the 
 government to enquire into and report upon medical questions connected with
 
 82 
 
 dent in regard to mental development and cultivation, and are 
 especially prone to violent passions, to sudden eruptions of 
 temper, to irascibility, and are in general cunning, deceitful, 
 unreliable, and are perversely prone to adhere to their purposes. 
 ( 291.) As respects their accountability to the law, the Deaf 
 and Dumb are on a par with idiots and imbeciles, unless their 
 natural infirmity and intractability of mind has been more or less 
 removed by a good education while young, and even if their 
 intelligence is cultivated, they always experience difficulty in 
 understanding others, and in making themselves understood.* 
 In respect to their legal liability or accountability for their acts, 
 the following points should always be considered : 1. The degree 
 of their mental infirmity. 2. Whether the law violated could be 
 understood by them. 3. Whether the exciting cause of the act 
 was different in their case from what it would be in the case of 
 an ordinary person. All these questions, however, can be an- 
 swered only after a careful investigation of the individual case.f 
 The question, how far uneducated Deaf Mutes are responsible 
 to the criminal law for their acts, has often been argued within 
 the last thirty years before the French courts. One of the 
 earliest cases we have met with is recorded in Bebian's Journal, 
 (1826.) An officer, with two assistants, went to the house of a 
 peasant near Rodez, to serve an execution. While they Avere 
 making an inventory of the movables, they discovered the peasant 
 at a distance endeavoring to drive off a cow, which was the most 
 valuable article of his property. He was instantly pursued, and 
 soon overtaken, knocked down, trampled on, and the cord by 
 which he led the cow wrested from him. While one of the 
 officers led the cow in triumph, and another dragged along its 
 unfortunate master by the collar, the son of the latter, returning 
 from his work in the field, saw at a distance the affray. This 
 was a Deaf Mute of about twenty years, tall and vigorous. 
 Furious and indignant at the way he saw his father treated, he 
 seized the first club at hand, fell upon the aggressors with a 
 
 * This view of an intelligent German writer we commend to those whose 
 imaginations are taken by the German system of teaching Deaf Mutes to speak, 
 as more attractive than our own system. 
 
 j- We shall hereafter give a case of the trial of a Deaf Mute for murder, in 
 Rhenish Prussia, in which, it will be seen, ho was adjudged not responsible, 
 precisely on what grounds however does not appear.
 
 83 
 
 savage yell, and after a very brief struggle, put all three to 
 flight. Complaint was, of course, made against father and son 
 for rebellion and violent resistance of the officers of the law. 
 The Deaf Mute, when brought before the tribunal, could not be 
 made to comprehend that he had committed any offence. He 
 supposed he was brought there in honor to his courage. When 
 his late antagonists appeared in court, he was with difficulty 
 withheld from attacking them, and endeavored to explain that 
 he saw two robbers, who ought to be punished. Notwithstanding 
 the grave nature of the offence, the task of his advocate was not 
 difficult. All minds and hearts were already prepossessed in his 
 favor, and the advocate had no difficulty in persuading the jury 
 that this youth was not amenable to laws of which he had and 
 could have no knowledge; that he had only fulfilled the most 
 sacred of duties, and exercised the first of rights in defending his 
 father and his property.* 
 
 In such a case as this, there can hardly be two opinions. But 
 though we can readily admit that an uneducated Mute is not 
 amenable to the artificial laws of society, we should still hold him 
 amenable in cases where he violates rights in others, which he 
 shows himself so prompt to defend in his own case. The Deaf 
 Mute of Rhodez showed a keen appreciation of the rights of pro- 
 perty, and in uneducated Mutes generally this sentiment of pro- 
 perty is strong. They must, then, know that they do wrong to 
 steal ; and that they are conscious of this is farther proved by 
 the fact, that when they do steal, they steal with secrecy and 
 contrivance, like other men. We cannot, therefore, by any 
 means approve of the defence set up in several cases in France, 
 for uneducated Mutes accused of theft, namely, that an unedu- 
 cated Deaf Mute is not an accountable moral agent. The first 
 case we have met with in which this plea was advanced, is that 
 of Nadau, also recorded in Bebian's Journal, (p. 42.) This un- 
 educated Deaf Mute was, in July, 1826, brought before the 
 Court of Assizes of Paris for theft. He had already been more 
 than once brought before the tribunals for similar offences, and 
 had suffered a year's imprisonment for theft. M. Paulmier, a 
 distinguished teacher of the Deaf and Dumb, served as inter- 
 preter. The avocat-general remarked, that "the involuntary 
 
 * Journal del'Instruction des Sourds Muets et des Avengles, Paris, 1826, p. 39.
 
 , 84 
 
 interest that attached to the accused ought not to make us forget 
 the evidence of the culpability of the prisoner. It has been 
 shown by the depositions of the witnesses, and by the examina- 
 tion of the prisoner through M. Paulmier, that he had very dis- 
 tinct notions of good and evil ; that he hid himself to steal ; that 
 he hid himself to sell what he had stolen ; and, finally, that he 
 confessed with confusion the faults he had committed. Besides, 
 if we suppose that Deaf Mutes have not as precise moral ideas as 
 other men, this Nadau had already been warned by several judi- 
 cial condemnations, that society punishes those who steal the 
 goods of another. He farther asked the jury to observe how 
 dangerous it would be to grant impunity to the accused. It 
 would be to deprive the unfortunate Deaf and Dumb of the re- 
 sources they find in labor ; for no person would dare to employ 
 them in his service, if it should be decided that the law is im- 
 potent to punish their faults. 
 
 M. Charles Ledru, who appeared on behalf of Nadau, rested 
 his defence on the ground that a Deaf Mute without instruction 
 is not capable of a delict. He maintained that the idea of jus- 
 tice and injustice can only reach the intelligence by the aid of 
 speech, or of words, resting especially on the authority of M. 
 de Bonald, to whose philosophy he took pleasure in rendering 
 public homage. Supposing that the accused could be held cul- 
 pable after the law of nature, he asked if the civil law could be 
 applied to a man who could never have known it. He concluded 
 by saying that society could not complain of offences committed 
 against her by an unfortunate whom she had abandoned to him- 
 self in the midst of a world which is to him an inexplicable mystery. 
 Instead of imprisoning the uneducated Deaf and Dumb, would 
 it not be better to instruct them ? This reasoning made such 
 an impression on the jury, that Nadau was acquitted, after a 
 short deliberation. 
 
 This doctrine, that the idea of justice or injustice, or any other 
 moral or religious idea, can only reach the mind by means of 
 words, is, we need hardly say, utterly false and groundless. If 
 such were the case, we should, of necessity, despair that our 
 Deaf-Mute pupils could ever attain such ideas. What knowledge 
 of words they possess is, in most cases, acquired through expla- 
 nations in gestures and in all cases gestures form the readiest 
 means of explaining words to them. It is absurd, then, to imag-
 
 85 
 
 ine that words, whose meaning they have learned only through 
 gestures, can convey to them ideas for the expression of which 
 gestures are inadequate. 
 
 But though we utterly repudiate the philosophy which makes 
 the possession of a moral and religious sense depend on the pos- 
 session of a verbal language, we fully admit that, with the un- 
 educated Deaf and Dumb, the intellectual and moral faculties 
 labor under great difficulties and disadvantages as to their devel- 
 opment. Some of this class of persons are hardly superior to 
 idiots, and from this low point, their intelligence and moral sense 
 vary over an extended scale, up to nearly or quite the average 
 of ignorant persons generally, who are not Deaf and Dumb. 
 Common sense teaches us that where a Deaf Mute commits a 
 wrong, knowing that it is a wrong, or at least knowing that such 
 acts are punished when detected, he should be punished, without 
 regard to metaphysical speculations as to his exact moral state- 
 But his unfortunate condition may with justice be urged in miti- 
 gation of the punishment, and this rational view is the one now 
 prevailing in France. Several instances are recorded, in which, 
 as in the 'case of Nadau, Deaf Mutes have been acquitted by 
 juries in consideration of this supposed want of moral accounta- 
 bility; but, in other later instances, the verdict has been so 
 framed as only to secure a mitigation of the punishment. 
 
 M. Edouard Morel, a very eminent French teacher, comment- 
 ing on one of those cases in which the plea of want of moral 
 accountability had been set up, justly observes: "Unless he be 
 an idiot, every Deaf Mute who, after having committed a theft, 
 is brought before the tribunals, knows that he has done wrong ; 
 and the advocate who is called on to defend him, places himself 
 on a false ground, when, to obtain an acquittal, he sustains that, 
 deprived of hearing and speech, his client is incapable of at- 
 taining moral ideas, and ought not, in consequence, to be res- 
 ponsible for his actions. 
 
 " If such a doctrine should come to be prevalent, and to be 
 the foundation of our criminal jurisprudence, it might involve 
 the most disastrous consequences for society. Men accustomed 
 to crime would seek, perhaps, for accomplices among uneducated 
 Mutes, and would find in them instruments so much the more 
 docile, that they would be assured in advance of their impunity. 
 
 " If I had to defend a Deaf Mute before the courts, I would
 
 86 
 
 carefully abstain from advancing a plea that, in order to save a 
 guilty person, would slander the dignity of human nature, by 
 pronouncing a sentence of incapacity against all the Deaf and 
 Dumb who remain faithful to their duties. I would not fear to 
 avow the fault of my client ; but I would throw off the respon- 
 sibility on society itself, which, by a cruel heedlessness, has left 
 to vegetate in its bosom a whole class of its members, exposed 
 without defence to every temptation of passion, to every solicita- 
 tion of vice. Without doubt a Deaf Mute is culpable when he 
 commits a bad action ; but would it be just to treat him accord- 
 ing to the rigor of the law ? Can the axiom, The law is held 
 to be known to all, be applied to a being who is absolutely inca- 
 pable of knowing the law?"* 
 
 We may add, that the Deaf and Dumb themselves, who must 
 know what their own views and feelings were before instruction, 
 warmly and indignantly reject and repudiate the plea of moral 
 incapacity set up for their uneducated brethren. And we be- 
 lieve it has been generally abandoned. The more rational plea 
 that makes the misfortune of the Deaf Mute criminal an extenua- 
 tion of his fault, has, however, often been urged with deserved 
 success. For instance, a Deaf Mute who was accused of grand 
 larceny, with the aggravating circumstances of night, and break- 
 ing a lock, was, on account of his infirmity, found guilty of 
 larceny simply, without mention of the aggravating circum- 
 stances, thus securing a much milder punishment.f 
 
 The favor of courts and juries may also be justly invoked for 
 a Deaf person in cases where he has acted under erroneous 
 impressions natural to one in his circumstances. Deaf Mutes 
 and Deaf persons who are not quite dumb, are often suspicious 
 and irritable, from their inability to hear and take part in what 
 is going on around them. They sometimes take as intentional 
 annoyance and insult gestures or practical jests, unskillfully 
 made, which were merely intended as friendly pleasantry. Pi- 
 roux records the case of Jean-Baptist Villemin, a Deaf Mute 
 
 * Piroux' Journal, i, 21, taken from La Gazette des Tribunaux, oflSihDec. 
 1838. 
 
 f Piroux' Journal, ii, 151, case of Collett, -who robbed another Deaf Mute. 
 The defence was that Collet, who had received some education, might have the 
 conscience of a bad action, but not of the aggravating circumstances.
 
 87 
 
 of twenty-nine years, very imperfectly educated and of feeble 
 capacity. Placed by the wealth of his family above the neces- 
 sity of manual labor, and incapable of intellectual labor, he fell 
 into dissolute habits, wandering idle about the fields, and fre- 
 quenting public houses. One night, in a tavern, he met a man 
 named Marchand, who attempted to amuse himself and the 
 company by making signs to the Deaf Mute which the latter 
 did not understand. Villemin indicated by a gesture that he 
 desired to be let alone ; but Marchand continued to annoy him, 
 seizing his head and making a bite at his nose ; and brandishing 
 round his head a cane, which he then held in the attitude of 
 firing a gun, saying to the company that he wished to invite 
 Villemin to go a hunting. Villemin naturally lost his patience; 
 unable to understand what was meant by the brutal behavior 
 of Marchand, or to express his own sentiments, except by 
 actions, he seized the aggressor, flung him on the floor, and 
 gave him a kick on the head. Marchand was only slightly hurt. 
 The company declared, and he admitted that he was himself to 
 blame ; and he said he harbored no ill will to Villemin, for what 
 had passed. Returning home, a distance of several leagues on 
 foot, he fell sick, and died of a disease of the chest, which his 
 family chose to ascribe to the blows he had received from 
 Villemin, which, however, was disproved by the medical wit- 
 nesses. The Deaf Mute was in the first instance sentenced to 
 two months' imprisonment ; but on an appeal to the Cour Roy ale 
 of Nancy, in consideration of the unfortunate condition of Ville- 
 min, and of the brutal and inconsiderate conduct of Marchand, 
 the term was reduced to six days.* 
 
 Other cases may easily be supposed in which a Deaf person 
 may be led to violent conduct by his inability to hear, and to 
 understand what is meant by others. An impatient man, for 
 instance, requests a Deaf Mute to get out of his way, and not 
 knowing that the latter could not hear his request, attempts to 
 shove him aside, thus provoking a manual retort. A Deaf Mute 
 may also erroneously conceive himself wronged in making 
 change, or in price, weight or measure, and break out into vio- 
 lence. In such cases, we .are confident, there are very few who 
 
 * Piroux' Journal, i, 4G and 69.
 
 vrould undertake a prosecution for violence by a Deaf Mute, 
 after becoming aware of his peculiar circumstances. 
 
 The disposition of courts and juries to mitigate the punish- 
 ment of an uneducated Deaf Mute criminal has been shown in 
 France and Germany, in several cases of murder, some of them 
 of an aggravated character ; for it is notorious that Deaf Mutes, 
 who have grown to maturity without instruction, are too often 
 passionate and vindictive. Be'bian relates the case of Pierre 
 Sauron, an unedcated Deaf Mute of the department of Cantal, 
 who had formed an illicit connection with the daughter of a 
 neighbor. The father, scandalized by such a connection with a 
 dumb man, undertook to put a stop to it by sending his daughter 
 out of the country. For this Sauron manifested the most im- 
 placable resentment, and finally waylaid and murdered him. 
 The sentence was hard labor for life; for the like crime, one not 
 deaf and dumb would have been sent to the guillotine. When 
 the sentence was explained to the Deaf Mute, he declared he 
 would rather be put to death. 
 
 Another case we find thus related in the Ninth Report of 
 the Deaf and Dumb Institution of Hamburgh (Germany.) At 
 Cologne, on the 14th or 15th of August, 1829, the royal Court 
 of Assizes was occupied by an accusation against a Deaf and 
 Dumb journeyman shoemaker, Johann Schmit, of Kreuznach, 
 who, enraged at being upbraided for the defects of his work, 
 had stabbed his master with a knife. The principal question 
 discussed was, whether the early instruction and moral and 
 intellectual state of the Deaf Mute made for or against his 
 accountability. The jury found that the unfortunate murderer 
 was not accountable ; and he was therefore acquitted of the 
 charge, and dismissed free into the street. " This, (adds the 
 editor of the Hamburgh Report,) it is to be hoped, was not with- 
 out that solicitude that might secure a better education to the 
 unfortunate man, then twenty-three years old, and sufficient 
 precautions lest he should become possessed with the idea that 
 he could do such acts with impunity." 
 
 A much more aggravated case than either of the foregoing was 
 that of Michael Boyer, an uneducated and vagabond Deaf Mute, 
 of about 27 or 28 years, who was brought before the Court of 
 Assizes of Cantal, (France,) under the triple charge of rape, 
 murder and robbery, committed on a girl of eleven years, whom
 
 89 
 
 he met in a lonely place on Christmas day, 1843, on her way to 
 the residence of an aunt in a distant village, with whom she was 
 to spend the winter, in order to attend school. Boyer was 
 proved to have pursued other females with evident intentions of 
 violence, and had been, some years before, condemned to three 
 years' imprisonment for theft. The evidence, though circum- 
 stantial, was conclusive. It is not to our purpose to detail it. 
 We observe, however, that the prisoner, being interrogated 
 through M. Riviere, director of the school for the Deaf and 
 Dumb at Rhodez, denied energetically the principal facts imputed 
 to him, and succeeded in making it understood that he main- 
 tained that the blood observed on his garments came from a 
 wound in the head, occasioned by a fall while in liquor. What 
 plea was by his counsel set up in defence, we are not informed. 
 The jury found him guilty of the triple charge, but admitted 
 extenuating circumstances a verdict the effect of which was to 
 save the prisoner's life. He was condemned to hard labor for 
 life and to the exposition publique (pillory or stocks.)* It should 
 be observed, that the only extenuating circumstances that appear 
 in the narrative of this fearful crime, were the total deprivation 
 of instruction and neglected vagabond state of the criminal. 
 
 A similar verdict and sentence were given in the case of the 
 Deaf Mute Emmanueli, of Corsica, who had waylaid and mur- 
 dered the two sisters Ristori, provoked to frenzy by the obstinate 
 refusal of one of them to listen to his prolonged suit. He had, 
 some years before, killed her brother in a quarrel on the same 
 account, and it being considered that he had acted with great 
 provocation, was only condemned to five years' imprisonment a 
 lenity which the commission of the second, and far more aggra- 
 vated, murder showed to have been misplaced. f 
 
 The details of another French case of murder by an unedu- 
 cated Mute, Louis Chavanon, may be read in Beck's Medical 
 Jurisprudence. This Deaf Mute was of such a covetous and 
 grasping disposition, that he harbored the most violent enmity 
 against any who purchased property of his father. The de- 
 ceased, Treille, having become possessed, by purchase, of half 
 of the house in which Chavanon lived, the latter, after repeated 
 menaces in gestures, meeting him on the common stairs, an affray 
 
 * Morel's Annales, ii. 166-170. f Piroux' Journal, iv. 144.
 
 90 
 
 ensued which ended in the death of the unfortunate Treille. The 
 sentence was ten years' imprisonment, and a fine of 1,000 francs 
 to the widow and children of Treille. 
 
 Another deplorable instance of the ungovernable passions of too 
 many uneducated Mutes is furnished by the case of Pierre Lafond, 
 who, having been repeatedly detected in thefts of the property of 
 his uncle and aunt, by whom he had been adopted and brought 
 up, his aunt was at length provoked to the degree of following 
 and reproaching him in the presence of a young neighbor, of 
 whom Lafond was enamored. Watching an opportunity to exe- 
 cute the vengeance that rankled in his heart, he availed himself 
 of the absence of his uncle to attack his aunt at night in her bed 
 with several of the shoe knives used by him in his trade. Her 
 daughters, coming to her assistance, were also grievously wound- 
 ed, but providentially none of the victims were mortally touched. 
 Taken a day or two afterwards, wandering in the fields, Lafond 
 alleged, by the aid of an interpreter conversant with his signs, 
 that he committed the act under the influence of a sudden fright 
 and hallucination. However, neither this adroit defence, nor his 
 unfortunate position, could make the jury forget the aggravating 
 circumstances of the case. He was found guilty, and condemned 
 to ten years at hard labor.* 
 
 The following curious and interesting trial is translated from 
 Hitzig's Zeitschrift fiir deutsche und auslandiche Criminal 
 Richts Pflege. Berlin, 1828 : 
 
 A young man, named Filleron, was brought before the Court 
 of Assizes at Paris, in August, 1827, charged wiih housebreaking 
 and petty theft. Deaf and dumb from his birth, he had never 
 enjoyed the advantages of education, and had neither kindred, 
 friends, nor any regular occupation. Abandoned by his parents, 
 he was received into the Orphans' Asylum, and afterwards trans 
 ferred to the Bicetre, from which he ran away. Since that time, 
 he has lived in Paris entirely isolated, without a home or any 
 means of support, except what he received from some Deaf and 
 Dumb persons. M. Paulmier, the successor of De I'Epe'e and 
 Sicard in the direction of the Institution for the Deaf and Dumb 
 at Paris, was employed as interpreter, and it was surprising with 
 what ease he made himself understood by the prisoner, without 
 
 * Piroux' Journal, i. 56.
 
 91 
 
 the assistance of the signs adopted in the Institution. He also 
 understood and explained the meaning of the prisoner with great 
 facility. Filleron entered the hall with a wrinkled brow and a 
 vacant countenance, and having thrown a careless glance around 
 the assembly, he remained motionless. 
 
 The President, with the assistance of M. Paulmier, asked him 
 his name. This is the only word of which he knows the letters. 
 He answered by signs that he was called Filleron, and signified, 
 with his fingers, that he was nineteen years of age. The Presi- 
 dent desired that he might be asked where he was born. M. 
 Paulmier, by motions and gestures, endeavored to convey to him 
 the idea of a child in the cradle and at the breast. Filleron 
 made signs that he had come from a great distance, and that his 
 father was a mason ; and raised and lowered his hands several 
 times to imitate the motion of the waves. M. Paulmier explained 
 his meaning to be that he was born on the sea-coast. M. Paul- 
 mier then enquired of him his place of abode, by laying his head 
 on his hand as if asleep. For answer, Filleron scratched his 
 hands, as if afflicted with a certain cutaneous disorder. By this, 
 M. Paulmier understood him to mean that he lived in the Bicetre. 
 The bill of complaint was then read, which charged that Filleron, 
 (after he had ran away from the Bicetre, and had come to Paris,) 
 by creeping under a door, and breaking a pane of glass, had 
 effected an entrance into the Orphans' Asylum, in which he was 
 educated, and had stolen the clothes of one of the young men ; 
 that three days after this, he again entered the Asylum, by 
 jumping over the wall, and, after having eaten in the kitchen, 
 had purloined a coal scuttle, three copper stew-pans and an 
 apron. These articles were delivered by him to one Letertre, a 
 well-known Deaf and Dumb cook, who invites customers by blow- 
 ing a trumpet. Letertre had deposited the articles with a wine 
 merchant, who, having his suspicions awakened, caused Filleron 
 to be arrested. The President desired M. Paulmier to make 
 Filleron understand that he was accused of the theft and house- 
 breaking. M. Paulmier imitated the motions of a person who 
 takes away a coat, and runs off; he then pointed his fingers to 
 the accused, and then to the officers of the court. Filleron 
 made a sign in the affirmative. M. Paulmier repeated his ges- 
 tures, and at the same time imitated the movements of a cook, 
 who shakes a stew-pan over the fire. Filleron signified, by lively
 
 92 
 
 gestures, that he understood him; repeated the motions, and ex- 
 pressed with his fingers that he had stolen three stew-pans and a 
 utensil managed with both hands. He was then asked how he 
 effected an entrance into the Asylum. He now, by attitudes and 
 motions, signified that he had crept under a door, broken a pane 
 of glass with his knife, and, having passed through a long pas- 
 sage, got into the kitchen ; that having eaten, he had taken three 
 stew-pans from the nails on which they were hung, and, after 
 wrapping them in a cloth, had made his escape. 
 
 President. "Ask him where he was educated ?" 
 
 M. Paulmier lowered his hands, in order to convey the idea of 
 a small child, and raised them gradually to represent its growth. 
 Filleron placed his hand on the collar of his jacket, to signify 
 that he was educated in the Orphans' Asylum, where the children 
 wore grey jackets with red collars. 
 
 President. "He was sent away from the Asylum for bad 
 conduct ; ask him why he went away?" 
 
 Filleron answered this question, by signifying that he had as- 
 sumed a sulky mien. He then scratched his hand, to express 
 the idea that he had been sent to Bicetre. 
 
 President. "Ask him if he has been employed as a tailor?" 
 
 M. Paulmier imitated the motion of a person who is sewing. 
 Filleron made a sign in the negative, and folded his arms, in 
 order to signify that he had no occupation. He then stretched 
 them out, as if he were pushing violently ; by this he intended 
 to express the idea, that he had worked at a well, and turned the 
 wheel. 
 
 President. "Ask him why he ran away a second time?" 
 
 Filleron expressed, by very intelligible signs, that he was tired 
 and had been beaten. He then made a wry face, and turned his 
 pocket wrong side outwards, to signify that he had not been well 
 paid. 
 
 President. " How has he lived since he ran away from the 
 Bicetre?" 
 
 M. Paulmier drew a large circle, to represent the city of Paris, 
 and imitated the motions of a man who is eating and sleeping. 
 Filleron understood this at once, and placed himself in an attitude 
 a if blowing a trumpet, and then pretended to eat, to signify 
 that he had lived with Letertre. 
 
 President. "Ask him, whether, some days previous to his
 
 93 
 
 arrest, he did not give five francs to one of the orphan boys, who 
 Avas sweeping before the gate of the Orphans' Asylum. 
 
 M. Paulmier showed him five francs, and endeavored to convey 
 to him the idea of a boy who is sweeping, to whom something is 
 given. Filleron made a sign in the affirmative, and expressed, 
 by signs, that he had obtained the money by working at the well. 
 President. "Ask him why he committed the theft?" 
 It was very difficult for M. Paulmier to make this understood. 
 When Filleron, at last, comprehended his meaning, he expressed 
 by signs, that he was large, subject to hunger and thirst, and 
 that he must have a pinch of snuff. 
 
 President. "Ask him if he knows it is unlawful to steal." 
 M. Paulmier acted as if he would have Filleron take away his 
 jacket, pointed to the gens-d'arms and the officers of the court, 
 repeated the same signs pointing to himself, and then placed 
 himself in a position as if he were seizing a thief, and binding 
 his hands. To all this Filleron answered by imitating the mo- 
 tions of a man who acts eagerly to signify that he was forced by 
 hunger to steal. 
 
 According to the statement of the Commissary of Police, be- 
 fore whom Filleron was first brought, when the stolen clothes he 
 had on were taken from him, he evinced signs cf the greatest 
 despair, and attempted to seize the sabre of one of the gens- 
 d'arms, and it became necessary to bind him. He then made 
 signs as if in mockery, and as if he wished to throw himself 
 into the water, or cut hi,s throat. After this, he bent his head 
 down and wept bitterly, and then remained motionless, and as if 
 sunk in the deepest despondency. 
 
 To the question, whether he had broken into the Asylum, Fil- 
 leron answered by signs that he had broken a pane of glass; but 
 that it had been broken before, and he earnestly insisted on this 
 last circumstance. When the stolen articles were shown to him, 
 he recognized them as such, and made signs that he was hungry. 
 M. Paulmier asked him if he was sorry. Filleron again ex- 
 pressed by signs that he was hungry and had nothing to eat; 
 and then placed himself in an attitude, as if some one were 
 pushing him and pointing out to him some object. M. Paul- 
 mier explained his meaning to be that he was instigated by some 
 other Deaf and Dumb person to commit the theft. On motion
 
 94 
 
 of the Advocate-General he was asked, whether he had not 
 been already punished in the Asylum for theft. To this he an- 
 swered by signs, that he was then very small, and that he was 
 allowed but a very small portion of bread and was hungry. He 
 then assumed the fixed posture of a soldier to signify that he 
 had been punished in that manner. 
 
 President. "Asked him if he had any idea of religion." 
 
 M. Paulmier pointed to the heavens and placed himself in an 
 attitude of supplication and struck himself on the breast, in sign 
 of guilt. Filleron did not appear to understand him ; but signi- 
 fied that it had been attempted to teach him to read and write. 
 M. Magni, the Director of the Orphans' Asylum stated that he 
 was convinced, that Filleron could not distinguish between good 
 and evil. 
 
 The second witness was the Deaf and Dumb cook. He was a 
 a pupil of the Abbe' de 1'Epde, and could understand and make him- 
 self understood with greater facility. He appeared to be in 
 high spirits, saluted the court with great civility, and at the order 
 of M. Paulmier, raised his hand with a very significant expres- 
 sion, denoting that he would open his whole heart. An inartic- 
 ulate sound, to which he gave utterance, resembled the French 
 word oui. He expressed, by signs, the letters of his name, 
 Antoine Alexandre Letertre, and that he was forty-seven years 
 of age ; he then placed himself in an attitude, as if he were 
 blowing a trumpet, and laughed heartily. He expressed, by 
 very intelligible signs, that he had tajjen the stolen articles, 
 and that Filleron had informed him that he had received them 
 for the purpose of getting them tinned over. He manifested 
 great abhorrence, placed one hand on his heart, and covered his 
 eyes with the other, and then pretended to push back the stew- 
 pans that were lying on the table with violence, to signify that 
 he did not know that they had been stolen. He then imitated 
 the movements of a man, who is seized and bound to a post. 
 M. Paulmier declared, that the honest Letertre well understood 
 that theft was unlawful, and that its consequences were impris- 
 onment and exposure in the pillory. 
 
 Here arose a very lively pantomime between Letertre and 
 Filleron. M. Paulmier explained, that Letertre asserted, in 
 contradiction of Filleron, that the latter had said, he had
 
 95 
 
 received the stew-pans for the purpose of getting them tinned 
 over. 
 
 President. "Ask the witness if Filleron has ever before de- 
 livered to him stolen goods." Letertre denied this, and made 
 signs that he was honest, had a good heart, and pushed the stolen 
 articles from him. 
 
 The other witnesses had nothing of importance to state. 
 
 The Advocate-General contended, that notwithstanding the 
 compassion we may feel for the condition of the Deaf and Dumb, 
 the law must take its course ; that there were Deaf and Dumb 
 persons, possessing intelligence and discernment ; and that they 
 were to be judged according to the measure of their under- 
 standing. In conclusion, he insisted that Filleron was capable 
 of distinguishing between good and evil, that he had acted with 
 intelligence, and must therefore be pronounced guilty. The 
 counsel for the accused, in the defence, assumed the position, 
 that a person Deaf and Dumb from his birth, who has never re- 
 ceived any education, is not amenable to the law. In this con- 
 dition, he cannot form any idea, for there is wanting to him 
 wordsy the elements of all ideas. Even if, by a kind of inspira- 
 tion and by observation, he has acquired a knowledge of the con- 
 sequence of evil actions, still it would not be possible for him to 
 choose, with a clear discrimination, between an action forced on 
 him by a state of extreme necessity, like that of the prisoner, 
 and a forbearance of that action for fear of its consequences. 
 He has not that self control, that freedom of will, upon which 
 all liability to punishment rests. His actions are not to be 
 measured by the standard of morality. But suppose this por- 
 tion to be untenable, he is not subject to punishment, according 
 to the well established rule of law, lex non obligat nisi pro- 
 mulgata. However great may be his inclination, he cannot ob- 
 tain a knowledge of the law, and the Apostle Paul says, ' I had 
 not known sin, but by the law ; for I had not known lust except 
 the law had said, " Thou shalt not covet." Filleron has, indeed, 
 seen punishments, executions, and gens-d'arms ; but gens-d'arms 
 are not the flesh become law. Were the seeing such objects as 
 these sufficient to create a liability to punishment, a criminal 
 code of laws would be useless, and it would only be necessary to 
 ascertain whether the person accused has ever passed by a 
 gallows.
 
 96 
 
 Filleron was acquitted. He received an earnest admonition 
 from M. Paulmier, which appeared to affect him.* 
 
 In the several French cases that have been cited, (and we 
 might have cited other similar cases from Bebian's, Piroux' and 
 Morel's Journals,) no difficulty appears to have been experienced 
 in relation to the formalities of a trial ; the questions that were 
 raised related to the degree of moral accountability of the Deaf 
 and Dumb. But the few English and Scotch cases we have are 
 mostly of a different character. In these cases, the defence set 
 up for Deaf Mutes accused of crime, has generally turned on 
 legal forms and technicalities. As this paper has already ex- 
 tended to an unexpected length, and as the cases to which we 
 refer can be consulted at large in standard works, we shall re- 
 strict ourselves to brief outlines. 
 
 In July, 1817, t Jean Campbell, an uneducated Deaf and 
 Dumb woman, the mother of three children by three different 
 fathers, was charged before the Court of Justiciary in Edin- 
 burgh, with murdering her child by throwing it over the old 
 bridge at Glasgow. Mr. Robert Kinniburgh, an eminent teacher 
 of the Deaf and Dumb, was called in as an expert ; and under- 
 stood from her signs that she maintained that, having the child 
 at her back, held up by her cloak, which she held across her 
 breast with her hands, being partially intoxicated, she had loos- 
 ened her hold to see to the safety of some money in her bosom, 
 thus allowing the child to fall over the parapet of the bridge, 
 against which she was resting. She indignantly denied having 
 intended to throw it into the river. 
 
 " Mr. Kinniburgh being asked whether he thought she could 
 understand the question, whether she was guilty or not of the 
 crime of which she was accused ? answered that in the way he 
 put the question, asking her by signs whether she threw her 
 child over the bridge or not? he thought she could plead not 
 guilty by signs, and this is the only way in which he could so 
 put the question to her, but that he had no idea, abstractly 
 
 * See American Jurist, vol. 3, p. 158. 
 
 f Beck gives this date, 1807, which is a manifest error, as Mr. Kinniburgh of 
 the Edinburgh Institution for the Deaf and Dumb, which was first opened in 
 1810, was called in the case, and referred, in giving his evidence, to his Report 
 for 1815.
 
 97 ~ 
 
 speaking, that she knew what a trial was, but that she knew she 
 was brought into court about her child." 
 
 " John Wood, Esquire, auditor of excise, (who is deaf and 
 partially dumb,) gave in a written statement upon oath, men- 
 tioning that he had visited the prisoner in prison, and was of 
 opinion that she was altogether incapable of pleading guilty or 
 not guilty; that she stated the circumstances by signs, in the 
 same manner she had done to the court, (when questioned before 
 the court by Mr. Kinniburgh,) and seemed to be sensible that 
 punishment would follow the commission of a crime." 
 
 " The court were unanimously of opinion that this novel and 
 important question, of which no precedent appeared in the law 
 of this country, (Scotland,) deserved grave consideration, and 
 every information that the counsel on each side could procure 
 and furnish." 
 
 " At a subsequent period, the judges delivered their opinion 
 as follows : 
 
 " Lord Hermand was of opinion that the panel (prisoner) was 
 not a fit object of trial. She was deaf and dumb from her in- 
 fancy; had had no instruction whatever; was unable to give 
 information to her counsel, to communicate the names of her 
 exculpatory witnesses, if she had any, and was unable to plead 
 to the indictment in any way whatever, except by certain signs, 
 which he considered no pleading whatever." 
 
 The other four judges, however, overruled this opinion, 
 referring especially to a case (already mentioned in a former 
 part of this paper) that had occurred in England in 1773, in 
 which one Jones, who had stolen five guineas, appearing to be 
 deaf and dumb, and being found by the jury empanneled on that 
 point, to be mute "from the visitation of God," was arraigned 
 by the means of a woman accustomed to converse with him by 
 signs, found guilty and transported. And it was also observed 
 that it might be for the prisoner's own good to have a trial ; for 
 if the jury found that her declaration, that she did not intend 
 to throw her child in the river, was true, she would be acquitted 
 and set free ; whereas, if not found capable of being tried for a 
 crime, she must be confined for life. The woman Campbell was 
 accordingly placed at the bar, and when the question was put, 
 guilty or not ? " her counsel, Mr. McNeil, rose, and stated that 
 he could not allow his client to plead to the indictment, until it 
 7
 
 98 
 
 was explained to her that she was at liberty to plead guilty or 
 not. Upon it being found that this could not be done, the case 
 Avas dropped, and she was dismissed from the bar simpliciter. 
 Thus, though it is established that a Deaf Mute is doli capax, 
 no means have yet been discovered of bringing him to trial." 
 
 Certainly the system of laws in Scotland must be defective, 
 under which important leading cases are decided, not on broad 
 general principles, but on mere formalities and technicalities. 
 
 We find an English case, similar in some of the circumstances 
 to that just cited. In 1831, a woman (Esther Dyson) was 
 indicted at the York Assizes (England) for the willful murder 
 of her bastard child by cutting off its head. Upon an arraign- 
 ment she stood mute ; a jury was empanneled, and evidence being 
 given that she had always been deaf and dumb, the jury found 
 that she was mute by visitation of God. Mr. Justice Park then 
 directed that an interpreter should be sworn to communicate 
 with her by signs, which was done, and the interpreter explained 
 to her by signs what she was charged with, and she made signs 
 obviously imputing a denial, and which the interpreter explained 
 to be a denial. Justice Park then directed a plea of not guilty 
 to be recorded. The interpreter was then directed to explain 
 to her that she was to be tried by a jury, and that she might 
 object to any of the jurors if she pleased ; but the interpreter, 
 as well as another witness, stated that it was impossible to make 
 her understand a matter of that nature, although upon common 
 subjects of daily occurrence which she had been in the habit 
 of seeing, she was sufficiently intelligent. One of the witnesses 
 had instructed her in the dumb alphabet, but she was not so far 
 advanced as to put words together, and the witness swore that 
 though she was then incapable of understanding the nature 
 of the proceeding against her and of making her defence, he 
 had no doubt that with time and pains she might be taught to 
 do so, by the means used by the instructors of the Deaf and 
 Dumb. Justice Park then directed that a jury should be em- 
 panneled to try whether she was sane or not, which having been 
 done, the same witnesses were then examined and testified to 
 her incapacity at that time to understand the mode of her trial 
 or to conduct her defence. Whereupon, the judge after stating 
 upon the authority of Sir Matthew Hale, that if a person of 
 sound memory commits a capital offence, and afterwards at any
 
 99 
 
 period becomes insane, that he cannot be proceeded against 
 during the existence of his phrenzy, but must be kept in prison 
 until his incapacity is removed; and that where the offence 
 charged is either treason or murder, that the fact whether the 
 alleged insanity is real or counterfeit is to be enquired into by a 
 j ur y told the jury that if they were satisfied that the woman 
 had not then, from the defect of her faculties, intelligence 
 enough to understand the nature of the proceedings against her, 
 they ought to find her not sane. The jury found that she was 
 not sane, and she was therefore ordered to be kept in strict 
 custody until the king's pleasure should be known.* 
 
 Five years afterwards, in March, 1836, a similar question 
 came before Baron Alderson. A man was indicted for bes- 
 tiality. Upon being put to the bar, he appeared to be deaf 
 and dumb, whereupon a jury was empanneled, who found he 
 was mute by visitation of God. As the prisoner was able to 
 read and write, the indictment was handed to him which he 
 read, and made a sign that he was not guilty. Upon this the 
 jury found that he was able to plead, and that point having been 
 determined, the next question submitted to the jury was, 
 whether he was then sane, and could be put upon his trial for 
 the offence. On the part of the crown, evidence was given with 
 a view of showing that, on the examination before the magistrate, 
 he had understood the charge, and had answered in writing. 
 But several 1 witnesses swore that he was nearly an idiot, and had 
 no proper understanding ; and that though he might be made to 
 comprehend some matters, yet he could not understand the pro- 
 ceedings upon the trial. In submitting the case to the jury, 
 Baron Alderson said that the question was, whether the prisoner 
 had sufficient understanding to comprehend the nature of the 
 trial, so as to make a proper defence to the charge, and that 
 three points were to be enquired into. First, Whether the 
 person was mute of malice or not. Second, Whether he can 
 plead to the indictment or not. Thirdly, Whether he is 
 of sufficient intellect to comprehend the course of proceedings 
 on the trial so as to make a proper defence to know that he 
 might challenge any of the jurors to whom he might object, and 
 to comprehend the details of the evidence, which, in a case 
 
 * Rex v. Dyson, 7 Car. and Pay. 305.
 
 100 
 
 of this nature, must constitute a minute investigation. That 
 if they thought that there was no certain mode of communicating 
 the details of the trial to the prisoner, so that he could clearly 
 understand them, and be able properly to make his defence to 
 the charge, that they ought to find that he was not of sane 
 mind. That it was not enough that he might have a general 
 capacity of communicating on ordinary matters. The jury 
 found that the prisoner was not capable of taking his trial, 
 whereupon the Court directed that he be confined in prison 
 during the king's, pleasure. This case, it appears, was considered 
 by several of the judges, and the course pursued by Baron 
 Alderson was approved.* 
 
 These two cases suggest the question, whether the law ought 
 not to recognize and make provision for that intermediate state 
 between full accountability and total want of capacity to commit 
 crime, which cases, like that of Esther Dyson, strikingly evince. 
 
 If her case had been brought before a French tribunal, in- 
 stead of staying proceedings on a point of form, thus condemn- 
 ing to an indefinite term of imprisonment one who might after 
 all be innocent, the trial would have proceeded ; and it would 
 have been for the jury whether to acquit her either as innocent 
 in fact, or not accountable ; or to find her guilty, with extenuat- 
 ing circumstances. In the latter case her punishment would 
 hardly be more severe than the imprisonment, perhaps per- 
 petual, inflicted on Esther Dyson without trial. 
 
 We recollect a case that was tried in Essex county, New 
 Jersey, about twenty years since, in which a man evidently deaf, 
 and pretending to be dumb also, was tried and convicted of 
 sodomy. Doubts were expressed whether the prisoner was both 
 deaf and dumb, because specimens of his writing, exhibited to 
 the court, showed a much better acquaintance with the sounds 
 than with the orthography of words. There appears, however, 
 from what we recollect of the case, no reason to doubt that he 
 was deaf, the most decisive test being that the sentence of seve- 
 ral years' imprisonment at hard labor, though pronounced in a 
 loud voice, produced no effect on him ; but when it was commu- 
 nicated in writing, he showed evident signs of being strongly 
 affected. As he was able to read and write, his examination 
 
 * Rex v. Prilchard, 7 Car. and Pay. 304.
 
 101 
 
 was at first in writing ; but, at a later stage of the proceedings, 
 a Deaf-Mute interpreter was procured. He was a wanderer 
 from abroad, whose previous history was known only from his 
 own account, and had probably lost his hearing after learning 
 to read and write. He appears to have prejudiced his own 
 cause by pretending to be both deaf and dumb ; since the suspi- 
 cion thrown on the latter point by the test that he knew words 
 by their sounds, rather than by their orthography, caused it to 
 be supposed that his deafness also was simulated to excite com- 
 passion. We mention this case, (of which we have no legal 
 record,) for the sake of observing that, in cases where a person 
 pretends to be deaf and dumb, and to have been taught to read 
 and write in the mode in which Deaf Mutes usually are taught, 
 the best test for detecting him, (next of course to proving directly 
 his ability to hear and speak,) is by observing whether in writ- 
 ing he shows an acquaintance with the sound rather than with 
 the orthography of words. The compositions of Deaf Mutes 
 are often disconnected, erroneous in syntax, or obscure or im- 
 proper in expression; but they are not very apt to make 
 blunders in orthography.* A man who writes idiomatic Eng- 
 lish, even of the homeliest kind, with an orthography governed 
 by the sound of the words, (e. g. I du not no,} cannot be a Deaf 
 Mute, though he may perhaps be deaf from childhood. 
 
 From the facts and reasonings presented in the course of this 
 paper, we deduce the following general principles, for which 
 we have obtained the sanction of some eminent members of the 
 legal profession, and which are respectfully submitted, as being 
 consonant to reason, and hence to law, according to the famous 
 dictum that law is the perfection of reason. 
 
 As a knowledge of words is not necessary to moral and mental 
 development, a Deaf Mute who cannot read or write is not 
 necessarily more ignorant in matters that can fall under his 
 personal observation or that form the ususal topics of conversa- 
 tion in signs between him and his acquaintances, than illiterate 
 
 * And when Deaf Motes do make blunders in orthography, they consist in 
 omitting or transposing letters ; not in spelling words according to their sound, 
 or substituting one word for another of like sound, unless so taught by ignorant 
 associates.
 
 102 
 
 persons who are not deaf and dumb. Hence a Deaf Mute who 
 has no knowledge whatever of written language, may yet, if his 
 dialect of gestures is sufficiently copious and precise, possess the 
 intelligence necessary to manage his own affairs, to make all 
 civil contracts, to execute a deed or a will, or to give evidence 
 in a court of justice, proper precautions being taken that the 
 interpreters, who accompany him before the attesting notary or 
 magistrate, are faithful, competent and disinterested. 
 
 But as the degree of intelligence and of moral development 
 in uneducated Deaf Mutes is very various some who have been 
 neglected in infancy being but a step above idiots they should 
 be carefully examined to ascertain whether they really possess 
 the necessary degree of knowledge and intelligent will. And 
 where any doubt may exist, it is advisable that teachers of 
 the Deaf and Dumb should be called in, as being more able to 
 appreciate such cases than any other persons, and usually more 
 expert in conveying ideas by pantomime than even the friends 
 of an uneducated Mute usually are.* 
 
 Cases however, as we have seen, occur in which the Deaf 
 Mute has formed with some intimate companion a peculiar 
 dialect, not to be understood by others. Here some person who 
 is conversant with the dialect used by the Deaf Mute will be 
 the best interpreter. This is more especially the case with those 
 
 * The late excellent T. H. Gallaudet, in an article in the American Annals 
 of the Deaf and Dumb, " On the Natural Language of Signs," (vol. i, p. 57,) 
 states the following fact: "The writer of this article, some years ago, was 
 requested, with a fellow laborer of his, at the time, in the American Asylum, to 
 visit a Deaf Mute in a neighboring town, about eighty years of age, possessed 
 of some property, and desirous of making a will. He could not read, nor write, 
 nor use the manual alphabet. He had no way of communicating his ideas but 
 by natural signs. By means of such signs, exhibiting a good deal of ingenuity 
 on the part of the old man, myself and companion were able to understand 
 definitely the disposition which he wished to make of his property among his 
 relatives and friends, and thus to enable him to carry his views into effect under 
 the sanction of the law." 
 
 In cases of a criminal charge, the nearest friends of the Deaf Mute accused 
 would hardly be reliable interpreters. In England, some years ago, a Deaf 
 Mute, named Howitt, was charged with murder. His father attended his exam- 
 ination as interpreter, but the coroner's jury, thinking he did not interpret some 
 very expressive gestures of the Deaf Mute, adjourned to procure a more disin- 
 terested interpreter. Piroux' Journal, v, 18.
 
 103 
 
 Deaf Mutes who retain an imperfect remnant of speech, and 
 endeavor to understand what is said to them by the motions 
 of the lips, aided by peculiar grimaces. 
 
 With respect to the formalities used, it may be laid down as 
 a general rule, that the Deaf Mute who can read and write but 
 imperfectly, or not at all, should be regarded as in the position 
 of a German or Frenchman, whose ignorance of our language 
 necessitates the employment of a sworn interpreter between him 
 and the court. 
 
 But where the Deaf Mute can read and write well, the best 
 mode is that prescribed in the French code. In the case of such, 
 reading supplies hearing, and writing supplies speech. Hence 
 it follows that a paper presented to a well-instructed Deaf per- 
 son, calling his attention by pointing with the finger to the 
 writing, should be considered as read to him, (it being under- 
 stood of course that there should be sufficient light and sufficient 
 legibility of writing). We think, however, it ought to be spe- 
 cially enacted that a legal service in the case of such persons 
 should consist in giving them a copy of the writ or notice to be 
 served, informing them by writing of its nature or contents, 
 and in the case of Deaf Mutes who cannot read, or but imper- 
 fectly, the reading may be accomplished by the aid of a compe- 
 tent interpreter. Any legal oath or obligation may be taken or 
 assumed by a well instructed Deaf person, by writing out with 
 his own hand the formula before witnesses, with such forms of 
 solemnity as the occasion may demand ; or by a conversation in 
 writing with the officiating magistrate. 
 
 It should, however, be generally understood, that many of the 
 Deaf and Dumb who have received more or less instruction in 
 our schools, are still but imperfectly acquainted with written 
 language, and that signs are the surest and readiest means of 
 reaching their conscience and intelligence the surest means 
 also that they possess for explaining their own meaning clearly. 
 
 With respect to civil rights, the Deaf Mute possesses all the 
 rights of his fellow-citizens, whose situation, Deaf-Mutism aside, 
 is the same as his own. Imbecility, insanity, and, in some cases 
 even, extreme ignorance may disqualify him from making con- 
 tracts, and necessitate the appointment of guardians but not 
 mere inability to write and read, if he evinces, by means of 
 signs, the requisite intelligence.
 
 104 
 
 And before the criminal, as well as before the civil law, the 
 Deaf Mute has the same rights, and is subject to the same ac- 
 countability as his brother who hears and speaks. We trust no 
 attempts will be made by unscrupulous pleaders, or, if made, will 
 be successful, to deprive him of the right to bear witness against 
 those who have wronged him ; and, on the other hand, while we 
 ardently desire to see all the Deaf and Dumb reach that degree 
 of moral improvement which shall preserve them from crime, 
 yet, when they do come before the criminal tribunals, we do not 
 wish to see them screened from deserved punishment by mere 
 technicalities, or by arguments of want of moral accountability 
 in the Deaf and Dumb generally. The ignorance and neglected 
 condition of an uneducated Deaf Mute may, however, be justly 
 urged in extenuation of his faults, as an appeal to the compas- 
 sion of the court, or of the pardoning power. And cases may 
 occur in which a Deaf person has acted under erroneous impres- 
 sions, natural in his circumstances ; as, for instance, in resisting 
 legal process, believing it to be unlawful violence. In such cases 
 there is evidently no more accountability than in cases of hallu- 
 cination. 
 
 And as it is of great importance to every man whose interests, 
 liberty or life are at stake in a court of law, to know, as they 
 transpire, the proceedings and evidence against him, we think it 
 ought to be made a rule, that in all such cases an interpreter 
 should be assigned to the Deaf Mute, who will keep him advised 
 of at least all the important points in the proceedings, by writing, 
 or by the manual alphabet and signs, according as the one mode 
 or the other is more clearly intelligible to the prisoner. 
 
 NOTE. 
 
 We have not discussed, in the foregoing paper, the right of a Deaf 
 Mute to vote, when otherwise legally qualified, because we had not met 
 any case in which that right was contested or denied, (if the French 
 case, in which the Deaf Mute was judged incapable of understanding 
 the electoral oath, be excepted,) till after this report was written. Very 
 recently we have met with a paragraph in Smith's History of New York, 
 (edition in the collections of the New York Historical Society, vol. ii,
 
 109 
 
 p. 293.) Of several points " resolved by the Assembly in the exercise 
 of their judicial authority, respecting the qualifications of their own 
 members" on occasion of contested elections, in 1761, the last was : 
 
 " 5. That a man deaf and dumb from his nativity has no vote." 
 
 On this case we make two observations. First, that as a property 
 (we think a freehold) qualification was then required for voters, the 
 Deaf Mute (for evidently the resolution refers to a vote actually re- 
 ceived or offered) was possessed of property, probably by inheritance, 
 showing that, at that time, Deaf Mutes were practically considered in- 
 capable of possessing property ; and second, that under a system of viva 
 voce voting, which, if we mistake not, then prevailed in the Colony, as 
 it still does in England, it would be hardly possible for an uneducated 
 Deaf Mute to give his vote, since he could name his candidate neither 
 by speech nor writing. If his intelligence was such that he ought to be 
 admitted to vote, some special statutory provision would be necessary in 
 his case, under a system of viva voce voting. Where the voting is by 
 ballot, however, no such special provision is necessary.
 
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