General Order No. 38
Engraving of a scene of Cincinnati, Ohio from the bank of the Ohio River, ca. 1860.
General Order No. 38 sought to eliminate open support for the Confederacy in the Department of Ohio during the American Civil War.
In April 1863, General Ambrose Burnside, commander of the Department of Ohio, issued General Order No. 38. Burnside placed his headquarters in Cincinnati. Located on the Ohio River, just north of the slave state of Kentucky, Cincinnati had a number of residents sympathetic to the Confederacy. Burnside hoped to intimidate Confederate sympathizers with General Order No. 38.
The Order stated:
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 also declared that, in certain cases, violations of General Order No. 38 could result in death.
Most Peace Democrats in Ohio objected to General Order No. 38. Clement Vallandigham, the best known Peace Democrat in the state, helped organize a rally for the Democratic Party at Mount Vernon, Ohio, on May 1, 1863. Peace Democrats Vallandigham, Samuel Cox, and George Pendleton all delivered speeches denouncing General Order No. 38. Vallandigham was so opposed to the order that he allegedly said that he "despised it, spit upon it, trampled it under his feet." He also supposedly encouraged his fellow Peace Democrats to openly resist Burnside. Vallandigham went on to chastise President Abraham Lincoln for not seeking a peaceable and immediate end to the Civil War and for allowing General Burnside to thwart citizen rights under a free government.
In attendance at the Mount Vernon rally were two army officers under Burnside's command. They reported to Burnside that Vallandigham had violated General Order No. 38. The general ordered his immediate arrest. On May 5, 1863, a company of soldiers arrested Vallandigham at his home in Dayton and brought him to Cincinnati to stand trial.
Burnside charged Vallandigham with the following crimes:
Publicly expressing, in violation of General Orders No. 38, from Head-quarters Department of 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.
A military tribunal heard the case, and Vallandigham offered no serious defense against the charges. He contended that military courts had no jurisdiction over his case. The tribunal found Vallandigham guilty and sentenced him to remain in a United States prison for the remainder of the war.
Vallandigham's attorney, George Pugh, appealed the tribunal's decision to Humphrey Leavitt, a judge on the federal circuit court. Pugh, like his client, claimed that the military court did not have proper jurisdiction in this case and violated Vallandigham's constitutional rights. Judge Leavitt rejected Vallandigham's argument. He agreed with General Burnside that military authority was necessary during a time of war to ensure that opponents to the United States Constitution did not succeed in overthrowing the Constitution and the rights that it guaranteed United States citizens.
As a result of Leavitt's decision, authorities were required to send Vallandigham to federal prison. President Lincoln feared that Peace Democrats across the Union might rise up to prevent Vallandigham's detention. The president commuted Vallandigham's sentence to exile in the Confederacy. On May 25, Burnside sent Vallandigham into Confederate lines.
Some historians have viewed General Order No. 38 as Burnside's personal attack on Vallandigham. While Burnside clearly objected to his views, the general was not personally targeting Vallandigham. Numerous Ohioans, especially those with family members living in or economic ties to Confederate states, openly objected to the war. Other Union military commanders issued similar orders. Burnside attempted to restrain all Confederate sympathizers residing in the Department of Ohio with General Order 38.
Critics of General Order No.38 commonly argued that this and several other actions by the Union government violated Americans' civil liberties, including the writ of habeas corpus and freedom of speech. The Union's actions clearly restricted freedoms that most Americans held dear in the 1860s and many hold dear still today, yet Union officials sought to preserve the Union, even if that meant a temporary suspension of these fundamental rights.
- Ambrose Burnside
- Samuel S. Cox
- Ohio River
- Abraham Lincoln
- George Pendleton
- Dayton, Ohio
- Clement Vallandigham
- Peace Democrats
- Cincinnati, Ohio
- Democratic Party
- United States Constitution
- American Civil War
- Mount Vernon, Ohio
- [Burnside, Ambrose Everett (1824 - 1881). Biographical Directory of the United States Congress]
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- Marvel, William. Burnside. Chapel Hill: The University of North Carolina Press, 1991.
- Official Roster of the Soldiers of the State of Ohio in the War of Rebellion, 1861-1866. Akron, OH: The Werner Company, 1893.
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- Roseboom, Eugene H. The Civil War Era: 1850-1873. Columbus: Ohio State Archaeological and Historical Society, 1944.
- Vallandigham, Clement Laird. Speeches, Arguments, Addresses, and Letters of Clement L. Vallandigham. New York, NY: J. Walter, 1864.
- Vallandigham, Clement Laird. The Record of Hon. C. L. Vallandigham on Abolition, the Union, and the Civil War. Columbus, OH: J. Walter & Co. 1863.
- Vallandigham, Clement Laird. The Trial of Hon. Clement L. Vallandigham, by a Military Commission and the Proceedings Under his Application for a Writ of Habeas Corpus in the Circuit Court of the United States for the Southern District of Ohio. Cincinnati, OH: Rickey and Carroll, 1863.
- Vallandigham, James L. A Life of Clement L. Vallandigham, by his Brother, Rev. James L. Vallandigham. Baltimore, MD: Turnbull Brothers, 1872.