Above, Gen. Ambrose Burnside
Before we look at the next document, let's have some commentary from esteemed historian Eric Foner on Lincoln and Civil Liberties.
Did Professor Foner defend Lincoln's suspension of habeas corpus?
As the war went on, Lincoln would expand his suspension of certain civil liberties. Freedom of Speech, Freedom of the Press and that old writ of habeas corpus were suspended in certain locations. The President issued an executive order in September of 1862 that suspended habeas corpus for those publicly opposed to a military draft, or for those otherwise aiding the South. Below is Lincoln's General Order #141.
In 1863, the decisive year of the war, Congress validated Lincoln's suspension of habeas corpus with the passage of the Habeas Corpus Suspension Act. This gave Congressional approval of Presidential power to suspend the right during the war. In September of that year, Lincoln would use this power to ban habeas corpus in the North for those accused of aiding the Southern cause. Already in April of 1863, Gen. Ambrose Burnside had suspended the writ, with the issuing of General Order #38. It's text is below.
*GENERAL ORDER No. 38,
HEAD-QUARTERS DEPARTMENT OF THE OHIO,
Cincinnati, 0., April 13, 1863.
General Orders,
No. 38.
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 class 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 offenses will be at once arrested, with a view to being tried as above stated, or sent be-yond 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.
By command of Major-General BURNSIDE.
There are several things to note here. Gen. Burnside states the penalty of death for these offenses early in the order. It is also an open-ended order, because it could include anyone who could be considered to "commit acts for the benefit of the enemies of our country". That could mean giving speeches or public statements that were considered to hurt the Northern war campaign, and that is exactly what happened in the case of one U.S. Congressman from Ohio, Clement Vallandigham.