Major-General Ambrose Burnside issued General Orders No. 38 on April 13, 1863 in an effort to silence opponents of the Civil War in the Department of the Ohio.
Issued on April 13, 1863, General Ambrose Burnside instituted General Orders No. 38 to eradicate open support of the Confederacy in the Department of the Ohio during the American Civil War. The order proclaimed:
The habit of declaring sympathy for the enemy will not be allowed in this department. Persons committing such offenses will be at once arrested with a view of being tried. . .or sent beyond our lines into the lines of their friends. It must be understood that treason, expressed or implied, will not be tolerated in this department.
Burnside hoped to silence war opponents, including Clement Vallandigham, with this order. While the order stated that deportation of Copperheads to the Confederate States of America was the most likely punishment, Burnside commented that death might be a suitable punishment in extreme cases of disloyalty.
Seeking additional supporters for their cause, Peace Democrats continued to hold rallies in Ohio, despite Burnside's General Orders no. 38. One such rally occurred on May 1, 1863 in Mount Vernon, Ohio. At this gathering, Ohio's leading Peace Democrats, including Vallandigham, urged attendees to denounce the Union war effort and to protest against General Orders No. 38. In reference to the order, Vallandigham purportedly stated that he "despised it, spit upon it, trampled it under his feet."
At least two Union officers attended the rally, and they quickly informed General Burnside of Vallandigham's statements. Burnside immediately dispatched soldiers to arrest the Copperhead. The men apprehended Vallandigham in Dayton, Ohio, this Peace Democrat's home city. Authorities transported him to Cincinnati, Ohio, where Burnside's headquarters was located and where Vallandigham would stand trial before a military tribunal.
Military prosecutors charged Vallandigham with violating General Orders No. 38, accusing the Copperhead of:
Publicly expressing, in violation of General Orders No. 38, from Head-quarters Department of the Ohio, sympathy for those in arms against the Government of the United States, and declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion.
Throughout the trial, the Peace Democrat and his attorney, George Pugh, never denied that Vallandigham had violated General Orders No. 38. Instead, the two men claimed that the military tribunal did not have jurisdiction in this case. The military court rejected the defendant's arguments, finding Vallandigham guilty and sentencing him to federal prison until the Civil War's conclusion. Vallandigham attempted to appeal the ruling in United States Circuit Court, but the presiding judge, Humphrey Leavitt, ruled in favor of the military, stating that, during times of war and civil unrest, that the federal government could legally expand its powers to ensure victory.
Fortunately for Vallandigham, President Abraham Lincoln commuted the Peace Democrat's sentence. Rather than imprisoning Vallandigham, Lincoln ordered him to live in exile in the Confederacy. Military authorities escorted Vallandigham to Confederate lines on May 25, 1863, carrying out President Lincoln's decision. Vallandigham remained in the Confederate States of America only for a short time, moving to Canada in June 1863. In Canada, Vallandigham ran for election as Ohio's governor, but he was easily defeated by Unionist Party candidate John Brough. In violation of his punishment, Vallandigham returned to the North, settling in Ohio, in early 1864.
It is the view of some historians that Burnside issued General Orders No. 38 as a personal vendetta against Vallandigham. There is no specific evidence to support this conclusion. In fact, other Union authorities, both civil and military ones, issued similar proclamations against Confederate supporters in the North. With a large number of Confederate sympathizers in Ohio, especially along the state's southern border, Burnside issued General Orders No. 38 to prevent anti-war demonstrations.
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"General Orders, No. 38 (DOO)," Ohio Civil War Central, 2020, Ohio Civil War Central. 11 Aug 2020 <http://www.ohiocivilwarcentral.com/entry.php?rec=104>
"General Orders, No. 38 (DOO)." (2020) In Ohio Civil War Central, Retrieved August 11, 2020, from Ohio Civil War Central: http://www.ohiocivilwarcentral.com/entry.php?rec=104
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