The first question to be determined in this case is whether it was competent to prove by ev.~ dence in pais that the county of Berkeley, or rather .the people thereof, maintained a loyal adhesion to the Constitution and Union, and so were within one of the exceptions of the act of Congress of July 13th, 1861, and of the Pres-dent’s proclamation issued in pursuance thereof, August 16th, 1861, excepting certain portions of the State and people of Virginia from the operation thereof, by which the people of said State had been declared to be in a state of insurrection against the government and laws of the United States.
Por the defendants it is insisted that it cannot be done, and that the status of any particular part of a State, whether in rebellion or not, is a matter to be determined by the President, under the act of Congress, and all territory not specifically described must be held to be in insurrection or rebellion, until the President, by some subsequent proe-#, lamation, declares that a part of it does “maintain a loyal adhesion to the Constitution and Union.” And that whether a particular place maintains a loyal adhesion or not is not a matter in pais to be decided by a jury.
. It was not the purpose of the act of Congress, nor of the proclamation, to declare those parts of the State in insur-'. rection which maintained .a loyal adhesion to the Union, and, therefore, such parts were expressly excepted. If ■ Berkeley county, therefore, in fact, maintained a loyal adhesion-to the Union, she was not declared in a state of insurrection. How the fact is to be ascertained is not indicated in the proclamation, and must, therefore, in a judicial proceeding, be ascertained like every other fact, by the best evidence which the nature of the case admits of; and that has been done, and, evidently, to the satisfaction of the court and jury, by the testimony in the cause and the public *476history of the country; and I may add to the satisfaction also of this court.
And this mode of ascertaining the fact is believed to be consistent with the principles and policy enunciated in the case of The Venice, 2 Wallace, 259.
I think, therefore, that the legal status- of the people of Berkeley, and the county territorially, was not changed by the proclamation from that of peace to one of insurrection and rebellion; nor could the fact that the court and officers in the county for a time acknowledged the authority of the rebels, and thereby forfeited the rightful authority, change the result.
Regarding then the status of Berkeley county as that of maintaining a loyal adhesion to the Constitution and the Union, the evidence further shows that, like many other loyal portions of the country not declared to be in a state of insurrection, as, for instance, nearly one-third of the counties of the State of West Virginia, the county of Berkeley was, at the time of the contract sued on, viz: on September 21, 1861, in fact overrun and in possession and military occupation thereof, actually held by the rebel armies, and the whole ♦country from thence to Richmond in like condition.
Thus situated the plaintiffs sold goods to a party for whom the defendant became surety for the price of the goods to be taken from Berkeley to Richmond, and which were taken accordingly. And the inquiry now is, whether the transaction was unlawful. If there had been no actual occupation of the county by the rebel forces at the time, it would have been clearly so, and the character of the transaction would not have been changed unless it had been shown to have been the result of necessity; for while submission to the vis major would be excused, no purely voluntary act otherwise unlawful could be justified.
There is nothing in the case impugning the voluntary character of the sale in question, and nothing, therefore, to relieve it from the taint of of illegality or draw the sting of disability which the laws puts on every voluntary contract with an enemy.
*477"Without feeling it necessary to review in this opinion the numerous authorities cited in the argument,'suffice it to say, according to the evidence, the contract sued on falls under the ban of the act of Congress and the President’s proclamation prohibiting trade with an enemy, as ’well as being against the policy of the common law.
I think, therefore, that there was no error in overruling the plaintiffs’ motion for a new trial. And the judgment of the court below should be affirmed, with costs and damages to the defendant in error.
The other judges concurred.Judgment aeeirmed.