William P. Waters and Wilburn Waters were the sons of
John P. Waters
with two different stories of their mother's ancestry.
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.
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
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.
STATE vs. WILLIAM P. WATTERS.
The declarations of the grandmother of one, who is charged to be a
person of June 1843 color, that his mother was the offspring of a white
man and herself, are not admissible evidence upon that question. The
act, prohibiting marriages between white persons and " persons of
color," includes in the latter class all who are descended from negro
the fourth generation inclusive, though one ancestor of each generation
may have been a white person.
Appeal from the Superior Court of Law of Ashe county, at Spring Term,
1843, his Honor Judge Dick presiding.
This was an indictment for a libel, a copy of which is as follows, viz:
Notice. A man called Isaac Tinsley on the first day of this month in a
suit wherein the State was plaintiff and myself
and wife were defendants, swear a wilful lie and I can prove it.
October 15th, 1841. (Signed) WILLIAM P. WATTERS."
The defendant pleaded not guilty and justification. The State proved
that the libel was written and published by the
defendant. The defendant relied on the truth of the charge as a
justification. The facts of the case as disclosed by the
testimony were as follows: The defendant and one Zilpha Thompson were
indicted in Ashe County Court in the year
1841. for fornication and adultery. The defendants, on the trial,
proved that they had been married. The State alleged
that the defendant, Wm. P. Watters, was a man of color, and that his
marriage, therefore, with a white woman was void.
The defendant, William P. Watters, contended that he was descended from
Portuguese, and not from Negro or Indian ancestors. The State
examined one Isaac Tinsly, as a witness on the said trial, who swore
that he knew the grandfather
and grandmother of the said William P. Watters, and they were coal
black negroes. There was a difference in the testimony as to what
Tinsly said on that trial about the color of the mother of the
defendant. The defendant and Zilpha Thompson were convicted and
punished under that indictment.
On the trial of this case, the defendant examined witnesses, who swore
that they knew the mother of the defendant
that she was a bright mulatto, with coarse straight hair that her name
was Elizabeth Cullom, and that she lived
with a man by the name of John P. Watters, who was a white man, but of
dark complexion for a white man and that the said John P. Watters was
the reputed father of the present defendant. The same witnesses swore
that they were acquainted with Mary Wooten, the mother of Elizabeth
Cullom and the grandmother of the defendant that Mary Wooten was not as
black as some negroes they had seen, and had thin lips. A witness on
the part of the State swore that he knew Mary Wooten, that she was
black, with thin lips and sharp features. The defendant then proposed
to prove, that Mary Wooten in her lifetime had stated to one of the
witnesses, that the father of Elizabeth Cullom was a white man. This
evidence was rejected by the court.
The jury found the defendant guilty, and, after a motion for a new
trial which was disallowed, judgment being rendered
against the defendant, he appealed to the Supreme Court.
Attorney General for the State.
Boyden for the defendant.
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
PER CURIAM. Judgment affirmed.