X (or W) marks the spot

Signed with their marks — illiterate?

Reader Brad Pierce descends from William and Elizabeth Pierce of Orange County, Virginia, and is puzzled by records that show the way they signed their names. On deeds and other legal documents where a signature was required, William signed with his mark –the initial “W” and, where her signature was required, Elizabeth signed with the initial “E.”1

So, Brad asks:

Can I assume that this means that they were illiterate? Or was this a common practice even among the literate in the mid 1700s.

Pearce to Cafer, 18 Oct 1745, Orange Co., Va.

In this case, and in most 18th and 19th century cases where a mark is used for a signature, it’s a safe bet that, yes, they were illiterate or, at a minimum, that due to age or infirmity they couldn’t write.

First off, it’s necessary to understand that literacy wasn’t an important element even for many of the landowners of the American colonies, particularly in the south.2

Although literacy among the wealthy was nearly universal in early Virginia, among the gentry, only about half could sign their names.3 And literacy rates for women, even just the degree of literacy needed to sign a name, lagged far behind that of men particularly in the south.4

So clerks and lawyers were regularly employed to write documents and read them to those who needed to execute them. And all that was needed to make a document legal was the person’s mark — in exactly the form that it appears on the Pierce deeds with the word “his” or “her” above the mark and the word “mark” beneath it, or, as in the example shown here, the phrase “their marks” between the two.

By definition, the term “his mark” or “her mark” on a document was a substitute for a signature by a person who couldn’t write:

A character, usually in the form of a cross, made as a substitute for his signature by a person who cannot write, in executing a conveyance or other legal document. It is commonly made as follows: A third person writes the name of the marksman, leaving a blank space between the Christian name and surname; in this space the latter traces the mark, or crossed lines, and above the mark is written “his,” (or “her,”) and below it, “mark.”5

Time after time in early cases, the validity of a signature by mark was upheld by the courts:

     • As far back as 1792, the North Carolina Supreme Court held that proof that “there was once such a man as that who has made his mark, and that he is now dead, or not to be found, and also that he used to make his mark in the manner that it appears to be made” on the document, it would be valid.6

     • In 1803, the Maryland Court of Appeals upheld a judgment that all the proponent of a will witnessed by men signing by marks had to have “proof that such marks are the marks of the witnesses.”7

     • In 1808, the Virginia Supreme Court upheld a bond signed with a mark on proof that the signer could not write his name.8

     • In 1809, the Kentucky Syupreme Court ordered a will admitted to probate when it was proved by witnesses that the deceased man had signed his mark.9

     • Another 1809 case, in New York, focused on proof of the validity of marks not only by the testator but also of all the witnesses to a 1757 will.10

     • Even the U.S. Supreme Court eventually weighed in, holding a mark valid in Zacharie v. Franklin, 37 U.S. 151, 161-162 (1838).

Although the mark was enough to make a deed like the Pierce deed valid, it was also true that literacy — particularly in the south — was the mark of the wealthy or aristocratic class. Where a person could sign his or her name, you can be pretty certain he or she would have done so unless age or physical infirmity prevented it. It would have been a matter of pride to sign.

So well established was the notion that a person who could write signed his name, not his mark, that one defendant in 1801 tried to get out of a contract by offering to prove he could sign his name and didn’t need to use a mark.11

In the case of the Pierces, they were both roughly middle-aged when this deed was signed in 1745. Age isn’t likely to have been a factor, and both reportedly lived many years beyond this transaction so infirmity isn’t likely either.12 Had they been able to write, or even sign their names, you can be pretty confident they would have. As a corollary, you can be pretty confident that signing by way of marks is a clear signal that they were in fact illiterate.


SOURCES

  1. See e.g. Pierce to Cafer Orange Co DB 10: 251-254. Orange County, Virginia, Deed Book 10: 251-254, William Pearce to Thomas Cafer, 18 October 1745; digital images provided by Brad Pierce.
  2. See generally Edgar Wallace Knight, Public Education in the South (Boston : Atheneum Press, 1922), 20-26; digital images, Google Books (http://books.google.com : accessed 4 Apr 2012).
  3. David Hackett Fischer, Albion’s Seed: Four British Folkways in America (New York : Oxford Univ. Press, 1989), 124.
  4. E. Jennifer Monaghan, Learning to Read and Write in Colonial America (Amherst, Mass. : U. Mass. Press, 2005), 3.
  5. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 755, “Mark.” See also John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed date), “Mark” (“a sign traced on paper or parchment, which stands in the place of a signature, usually made by persons who cannot write”).
  6. Nelius v. Brickell’s Administrators, 2 N.C. 19 (1792).
  7. Collins v. Nicols, 1 H. & J. 399 (Md. 1803).
  8. Argenbright v. Campbell, 13 Va. 144 (Va. 1808).
  9. Thompson v. Shoeman, 4 Ky. 401, 402 (1809).
  10. Jackson v. Van Dusen, 5 Johns. 144 (N.Y. Sup. Ct. 1809).
  11. Beall v. Prather, 1 H. & J. 210 (Md. 1801).
  12. Both are widely reported to have been born between 1705 and 1710; William reportedly died c1760 and Elizabeth thereafter.
Print Friendly
This entry was posted in General, Legal definitions. Bookmark the permalink.

4 Responses to X (or W) marks the spot

  1. Marcia Thomas says:

    I see that the Pierces used the first initial of their given names as their marks. Many of my ancestors did as well in the 18th century which has led me to surmise this was a very common practice. I then wonder if an individual repeatedly used a letter such as an F, E, L backwards would this became his or her established mark. It seems to be in the examples I have been able to locate. If one didn’t could the mark be challenged legally?

    • Judy G. Russell says:

      Using initials was very common, and using one backwards was as well. There are certainly cases where a person used one mark so consistently it became the functional equivalent of a signature. Moving away from that would open the door for a challenge, but, just as people’s signatures change over time, marks did too, and you’d always be able to (a) testify that “yep, you signed it” or (b) get someone else to testify that “yep, she signed it.”

  2. Marcia Thomas says:

    Thanks! To be more specific I was thinking about a will that was signed with a forward E just weeks after several land records were signed with a backward E. The land records were in PA and the will in VA. This backward E had been used by the Evan Thomas in PA on documents for a while. This makes me think it’s likely that they were two different men–especially since the children were different in PA from VA. Am I all wet?

    By the way, what a wonderful resource you offer!

    • Judy G. Russell says:

      Nope, you sound like you’re headed in the right direction. It’s a solid piece of evidence to help build your proof argument.

      And thanks for the kind words!

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>