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front in Western Kentucky and Tennessee, then held by Major General Rosecrans, the protection of whose lines was a part of General Burnside's duty. Every precaution was taken to prevent the incursions of the enemy's cavalry and guerillas. Our force was not large, and occasionally predatory bands would be able to evade the guards. But their success was short-lived, and gave but little encouragement for a multiplication of such practices. Still, for the purposes of his Department, General Burnside felt that his present number of troops was inadequate. Congress had already authorized the organization of a force of twenty thousand men in Kentucky, and to this duty the commanding general gave his immediate
The civil affairs of the Department also began to assume prominence. Domestic enemies were busy in attempting to thwart the plans of the government, to prevent enlistments of troops, and to give aid and comfort to the public enemy. The character of the general in command of the Department became an object for the shafts of slander and malice. For the latter, General Burnside did not care. But he could not and would not endure the former. He judged that the exigencies of the service demanded some special attention, and called for an act of unusal stringency. Accordingly, on the 13th of April, he issued a general order, which became, among the people of that section, a topic of earnest and, in some cases, acrimonious discussion. This document is known as "General Order No. 38," and its importance claims for it a place in these pages. It was dated at Cincinnati, on the 13th of April, and was as follows:
"The commanding general publishes for the information of all concerned, that hereafter all persons found within our lines who commit acts for the benefit of the enemies of our country, will be tried as spies or traitors, and, if convicted, will suffer death. This order includes the following classes of persons: "Carriers of secret mails.
"Writers of letters sent by secret mails.
"Secret recruiting officers within the lines.
"Persons who have entered into an agreement to pass our lines for the purpose of joining the enemy.
"Persons found concealed within our lines belonging to the service of the enemy, and in fact all persons found improperly within our lines, who could give private information to the enemy.
"All persons within our lines who harbor, protect, conceal, feed, clothe, or in any way aid the enemies of our country.
"The habit of declaring sympathies for the enemy will not be allowed in this Department. Persons committing such offences will be at once arrested, with a view to being tried as above stated, or sent beyond our lines into the lines of their friends.
"It must be distinctly understood, that treason, expressed or implied, will not be tolerated in this Department.
"All officers and soldiers are strictly charged with the execution of this order."
The effect of this order upon the affairs of the Department was marked and decisive. In Kentucky, it was especially beneficial. The emissaries of the rebel government had heretofore practised their schemes with comparative impunity. But now they felt upon them the pressure of a strong hand. The civil authorities of the State were encouraged in their endeavors to preserve the allegiance of the citizens unimpaired. The disloyal elements were suppressed, and a condition of tranquillity not previously experienced was the result. In the States north of the Ohio, a feeling of stronger opposition prevailed in some quarters. Many persons were of the opinion that their rights of free speech were violated, and they gave vent to their grievances through the public press, and on the rostrum. But General Burnside steadily pursued his course, and it was not long before an occasion was presented which gave all parties to understand that the authority of the government was supreme.
Another important order, issued about this time, had reference to the vexed question of slavery. The citizens of Ken
tucky had experienced some trouble in relation to the escape of their slaves, who had not been included in the Proclamation of Emancipation. They had not been tenacious in their observance of the rights of slaves from other States who had been made free. It was found necessary to remind all such persons, that the laws of Kentucky and of the United States were still in force and must be obeyed. An order, issued April 28th, contained the following provisions:
"I. In accordance with the spirit of the Proclamation of the President of the United States, dated January 1, 1863, it is ordered, that all persons, belonging to or following the Army in this Department, are forbidden to interfere with or impede the operation of any civil process in the State of Kentucky, having in view the recovery of slaves of citizens of the State, and they are likewise forbidden to aid or abet in their escape from their homes, or to employ such persons against the consent of their owners, except in cases where military necessity requires their impressment, which impressment must be made in accordance with regulations governing such cases.
"II. All slaves made free by the war measures of the President of the United States, by Congress or by capture during the war, are entitled to their freedom, and no one in this Department has a right to interfere with that freedom. Any sale of such persons in this Department is void. The rights of citizens must be respected by the army, and the war measures of the Government must be sustained."
This order had, likewise, a tranquillizing effect, and resulted in great good to all concerned. The soldiers learned that military authority was not always the sovereign power. The citizens of Kentucky understood, that, if they claimed the protection of the law, they were not to make the law an instrument of oppression. Demanding their pound of flesh, they yet could take no drop of blood with it. The slaves were not to be mocked with delusive hopes of freedom, and those already emancipated were assured of the amplest protection and security.
Foremost among the opponents of the government in the State of Ohio was Mr. Clement L. Vallandigham, recently a member of Congress and a politician of some note belonging to the Democratic party. On more than one occasion, he had seen fit to declaim with great vehemence against the Government, and boldly defied its power. He delivered an address at Mount Vernon, Knox County, on or about the 1st of May, in which he was more than usually violent. The President, the army, General Burnside and the orders of the Department received a large share of his vituperations. His language was such as to induce General Burnside to adopt measures for his trial and punishment. Orders were accordingly issued, on the 4th of May, to Captain Charles G. Hutton, Aide de Camp, to proceed to Dayton, Mr. Vallandigham's place of residence, arrest the offender, and bring him to Cincinnati for trial. Captain Hutton went immediately to Dayton with a sufficient force to prevent resistance, and, on the night of the 4th, succeeded in taking Mr. Vallandigham without any disturbance, and returned to Cincinnati with his prisoner. On the 5th a charge was preferred, in which it was specified, that Mr. Vallandigham had declared the war to be "wicked, cruel and unnecessary," "for the purpose of crushing out liberty and erecting a despotism," "for the freedom of the blacks and the enslavement of the whites;" had stated that "if the Administration had so wished, the war could have been honorably terminated months ago;" had characterized General Orders No. 38 as a "base usurpation of arbitrary authority;" had invited his hearers "to resist the same by saying, the sooner the people inform the minions of usurped power, that they will not submit to such restrictions upon their liberties, the better;'" and had affirmed that he "was at all times and upon all occasions, resolved to do what he could to defeat the attempts now being made to build up a monarchy upon the ruins of our free government." These words were considered as tending to "aid, comfort and encourage those in arms against the Government," and to "induce In his hearers a distrust of their own government, sympathy
for those in arms against it, and a disposition to resist the laws of the land"—as Mr. Vallandigham "well knew." The exact words of the charge upon which the prisoner was tried were as follows: 66 Publicly expressing, in violation of General Orders, No. 38, from Headquarters 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."
A Military Commission was immediately convened for trial. Brigadier General Robert B. Potter was assigned as President and the following gentlemen constituted the court: Colonel John F. De Courcy, 16th Ohio infantry; Lieutenant Colonel E. R. Goodrich, Commissary of Subsistence; Major J. M. Brown, 10th Kentucky Cavalry; Major J. L. Van Buren, Aide de Camp; Major A. H. Fitch, 115th Ohio infantry; Captain P. M. Lydig, Aide de Camp. Captain J. M. Cutts, 11th United States infantry, was appointed Judge Advocate. The trial at once proceeded. It continued through the 5th and 6th days of May. Witnesses were examined on both sides. Mr. Vallandigham protested against the jurisdiction of the Commission, declaring that, as a citizen of the United States not in either the land or naval forces of the United States, nor in the militia in the actual service of the United States, he was not triable for any such cause as the charge alleged. He also declared that he was subject to arrest only by due process of law, . and demanded to be tried, if tried at all, by a civil court according to the ordinary methods adopted in the State of Ohio. The case was submitted without argument. The Commission examined the prisoner's protest, refused to admit its validity, found Mr. Vallandigham guilty of the charge, and the chief portion of the specification, and sentenced him "to be placed in close confinement in some fortress of the United States to be designated by the commanding officer of this Department, there to be left during the continuance of the war." General Burnside, on the 16th of May, reviewed the proceedings, approved