RUFFIN, C. J.
If the evidence had been heard, it could have availed nothing ; and for that reason the verdict should not be disturbed. The oath of the prosecutor was, on the former trial, that the grand-father and grand-mother of the defendant were coal black negroes. In that we must understand him to mean the reputed grand-father, as no marriage is stated. Now, that is not contradicted by the declaration of the grand-mother, even if true, that the natural father of her daughter was a white man ; for it is not suggested that the prosecutor knew thereof, or, even that there was such a reputation in the neighborhood, or among the kindred of the defendant. But admit that the defendant's grand-father was white, and the grand-mother only half African—of which last there is no evidence, still the defendant would have been within the degree prohibited from contracting marriage with a white woman. We say, prohibited degree, because, although the act which annuls marriages between the two races, uses the words " persons of color" generally, we are of Opinion, that expression must be construed in reference to other disabilities imposed, for reasons of a similar nature, upon persons of mixed blood. The act of 1777, c. 115, s. 42, the Rev. Stat. ch. Ill, s. 74, and the Constitution, article 1st, s. 3, besides other laws, designate such persons as those descended from negro ancestors, to the fourth generation inclusive, though one ancestor of each generation may have been a white person. And thus restricted,, the act includes the defendant, who, at most, was only the third generation from a full negro.
But we are of opinion that the evidence was properly rejected, independent of the above ground. It was hearsay ; and does not fall within any of the established exceptions to the general rule, which excludes such evidence. The Legislature has not prescribed the mode in which, in cases of birth out of wedlock, it is to be ascertained whether one of the ancestors was a white person ; and we should, perhaps, be at some loss to lay down a rule. But certainly if this is to be viewed as an attempt to prove a pedigree by the reputation in the family, and the declarations of deceased members of it, there is a signal failure. The declaration of the grand-mother assigns the paternity of her child to no man in particular, but only to some white man ; and would be the loosest proof of pedigree that ever established one. But if she had mentioned the father by name, and nothing more appeared, such as a recognition of the child by the designated person, or the appearance in point of color of the child or the like, it would have amounted to nothing. It could not be admitted under that class of cases, in which entries or declarations of third persons, with peculiar means of knowledge have been received. For in those cases the entry or declaration was cotemporaneous with the fact; and was also made by one under no motive to pervert the truth.
It does not appear, that this declaration was at or about the birth of her child ; nor when it was. And, besides, it is well known that persons, of the description of this woman, have a strong bias in their minds to induce the declaration from them, and, it possible, the impression on others, that their illegitimate child is the issue of a white man : if not to gratify a personal vanity in themselves, for the reason, that it removes their offspring one degree from the humbled caste in which he is placed by the law, whereby he is excluded from the elective franchise, and from competency as a witness between white persons, and prohibited from intermarrying with them.
PER CURIAM. Judgment affirmed.
The Life and Adventures of WILBURN WATERS
The Famous Hunter and Trapper of White Top Mountain
Embracing Early History of Southwestern Virginia
Sufferings of the Pioneers, Etc., Etc.
By Charles B. Coale
For Thirty-three years editor of the Abingdon Virginian.
Richmond 1878
Chapter II
Birth, Parentage, Nativity and Early Orphanage of Wilburn Waters
Wilburn Waters was born on what is called Ready's river, a branch of the Yadkin, in Wilkes county, North Carolina, on the 20th day of November, 1812. From the best information that can now be had, his father, John P. Waters, was a French Huguenot, who emigrated to America in early life, about the beginning of the present century, and settled in South Carolina. He was a man of some education and liberal acquirements, of strong prejudices and passions, restless, reckless and fond of adventure. Being remarkably stout, fearless and passionate, he was considered dangerous when excited or laboring under a sense of injury, and was supposed by those with whom he communicated most freely, to have been a refugee from South Carolina, if not from France, from some cause he never revealed to others. He settled down, without any apparent calling, among the simple and obscure people on Ready's river, where, after a time, he married his wife the mother of Wilburn, who was a half-breed of the Catawba Indian.
From what little history we have of the Catawbas, they were a small portion of the tribe that inhabited Roanoke Island when Lord Raleigh took possession of it about the middle of the sixteenth century, and being dissatisfied with the encroachments and exactions of their new and powerful neighbors, they sought a new home among the mountains on the western boundary of the colony, where game was abundant, and the clear, bold streams afforded a plentiful supply of trout and other excellent varieties of fish.
It is not known whether or not there were other Indians there at the time, but they had occupied there quiet retreat but a few years before the whites began to settle near and even among them, and at the time John P. Waters found a home among them they mostly half-breeds and quarteroons, with very few full-bloods, and the latter the aged members of the community. It is said they originally bore the name of Chowans, but after finding their way into the mountains they took the name of Catawba, the name by which one of the principal streams in that region was known.
Wilburn's mother was one of these people, and was, as before stated, a half-breed. He is, therefore, what is termed a quarteroon. She was said to have been very handsome, tall and straight, with nearly all the characteristics of a full Indian, except that she was unusually amiable in her disposition, and fond of quiet, domestic life. She had some education, was pious and affectionate, and was very anxious that her children should have pious instruction and the best education their limited means and opportunities would allow. She was the mother of five children--four sons and one daughter--of whom Wilburn was the youngest. She died when he was between two and three years old, and the only recollection he has of her is, that she had long, glossy black hair, which she wore loose, and reached nearly to the floor when she stood erect. She died young, and her death was a terrible blow to her husband, who was warmly attached to her, and whose turbulent nature she could control with a word. Notwithstanding this attachment, and his apparently unsubdued grief, he soon married another woman, left the community and his children among their relatives, and was never after heard from by his family.
