The appeal in each of these cases is from a judgment of the United States District Court for the Territory of Hawaii sustaining a petition for a writ of habeas corpus and ordering the discharge of the petitioner.
In case No. 10,774 the essential facts are as follows: Appellee Harry E. White is a citizen of the United States and of the Territory of Hawaii. On August 20, 1942, while engaged in Honolulu as a civilian in a brokerage and investment business, he was arrested and brought before Major Murrell, judge of the provost court, who informed him that he was to be tried before that court on a charge of embezzlement growing out of the conduct of his business, in violation of Chapter 1831, Revised Laws of Hawaii, 1935. He was on August 25, 1942, tried by the provost court upon that charge, without a jury, was convicted and sentenced to imprisonment for a term of five years. The sentence imposed was within the limits prescribed by the territorial statute.
On April 14, 1944, White filed his petition in the court below for release on habeas corpus, asserting lack of jurisdiction in the provost court and claiming that he had been deprived of the rights guaranteed by the 5th and 6th Amendments. The court issued a show cause order directed to the warden of Oahu Prison. It was later ordered, on stipulation, that Colonel Steer, Provost Marshal of the Central Pacific Area, and then custodian of the petitioner, be substituted as respondent in lieu of the warden. The Provost Marshal filed an answer in which he admitted the facts as stated above but denied that the trial and imprisonment were unlawful. The answer contained affirmative matter, alleging among other things, the suspension of the privilege of the writ, the declaration of martial law, and the existence as of August 1942, of an emergency necessitating the trial of civilians by a provost court as provided in the then subsisting orders of the commanding general; and it was asserted that the offense of which the petitioner had been convicted was not cognizable in the civilian courts because of the terms of the Governor’s proclamation of December 7, 1941.
The petitioner, by traverse, put in issue the allegations of the answer. Thereupon the writ was issued, the petitioner was produced and evidence taken. It was stipulated that the return to the order to show cause be considered the return to the writ of habeas corpus, and that the traverse to the return to the show cause order be considered the traverse to the return to the writ. Being of opinion that the provost court was without lawful authority to try the charge, the court ordered petitioner’s release from custody.
The facts in case No. 10,763 are these: Appellee Lloyd C. Duncan is a citizen of the United States living temporarily in the Territory of Hawaii, where he was in the civilian employ of the Navy Department at Pearl Harbor. On February 24, 1944, while within the limits of the naval reservation where he was employed, he assaulted and struck with his fists two marine corps sentries on duty at the main gate. Later he was summoned to appear before the provost court on the charge of assault *578with intent to obstruct the sentries in the lawful performance of their official duties, contrary to paragraph 8.01 of General Orders No. 2 of the Military Governor, dated March 10, 1943. He was tried by the provost court without a jury, was found guilty of the charge and was sentenced to serve a jail term of six months. He was then delivered into the custody of appellant, the sheriff of the city and county of Honolulu, and was confined by the latter in the Honolulu jail. Petition for the writ was filed March 14, 1944, and an order to show cause served on appellant the same day.
The sheriff made a return admitting the fact of the charge and conviction. The return alleged, in substance, that the public safety has at all times since December 7, 1941, required the continued existence of martial law and the suspension of the writ as proclaimed by the Governor of the Territory; that the General Orders referred to, respecting the establishment and authority of provost courts, were necessary for the successful prosecution of the war; and that the military action of punishing persons assaulting sentries engaged in the performance of their duty, with intent to hinder such performance, was not unreasonable or arbitrary.
As in the White case, the allegations of the return were formally put in issue by traverse. After hearing argument the court issued the writ and the sheriff produced the petitioner. It was stipulated that the government’s return to the order to show cause should stand as the return to the writ. There followed a trial at which testimony was taken bearing upon the truth of the situation as developed in the several pleadings. At its conclusion the court entered judgment discharging the petitioner from custody. The grounds given for the discharge were that martial law did not prevail in the Territory and that the provost court was without authority to try the petitioner.
As will later appear, there are substantial differences between these cases; but underlying each are the same fundamental questions namely, (1) whether the court was in error in holding that the petitioner was unlawfully imprisoned, and (2) whether, in any event, the court was foreclosed from inquiring into the legality of the detention because of the suspension of the privilege of the writ. The points are discussed in the briefs in the order named. However, before considering the first point it will be convenient at the outset briefly to notice the second.
1. Availability of the writ. In Ex parte Zimmerman, 132 F.2d 442, we held that the privilege of the writ of habeas corpus was lawfully suspended in the Territory by the Governor’s proclamation of December 7, 1941, issued with approval of the President. It was thought by the trial court that the suspension was subsequently terminated by a proclamation of the Governor issued with Presidential approval on February 8, 1943.
We do not agree. Without going into the matter in detail it is for present purposes enough to say that the later proclamation was not intended to terminate the suspension and did not have that effect. However, .in view of the conclusion we have reached in respect of the legality of the imprisonment in each case, it is unnecessary to consider whether the emergency existing in the Territory as of the time of the filing of the petitions was such as to warrant the then suspension of the writ. Nor, for the same reason, is it essential to inquire into the applicability of the suspension to these particular cases. Compare Ex parte Quirin, 317 U.S. 1, 24, 25, 63 S.Ct. 2, 87 L.Ed. 3. For the purpose of the decision we assume, without deciding, that the court was not disabled from entertaining the petitions.
2. Legality of the imprisonment. The Governor’s proclamation of December 7, 1941, in addition to suspending the writ, placed the Territory under martial law. The latter step, no less than the first, was authorized by the express language of § 67 of the Hawaiian Organic Act as is developed more at length in Ex parte Zimmerman, supra.1 The step, as there said, *579had the immediate approval of the President.
By the terms of the proclamation Governor Poindexter called upon the commanding general, “during the present emergency and until the danger of invasion is removed, to exercise all the powers normally exercised by me as Governor.” He further authorized the commanding general, “and those subordinate military personnel to whom he may delegate such authority, during the present emergency and until the danger of invasion is removed, to exercise the powers normally exercised by judicial officers and employees of this Territory and of the counties and cities thereon, and such other and further powers as the emergency may require.” The people of the Territory were admonished to obey the proclamation and such rules and orders as the commanding general might issue. Responding to the proclamation, General Short at once assumed the post and title of Military Governor, and his successor, General Emmons, did likewise.
Invocation of the military power could hardly have been more complete. As interpreted by the executive and as applied by the commanding generals, the term “martial law” was here accepted as meaning nothing less than total military government. From that time forward until March 10, 1943, the Territory app'ears to have continued under exclusive military rule.
By General Orders No. 4, issued December 7, 1941, General Short set up military commissions and provost courts with power “to try and determine any case involving an offense committed against the laws of the United States, the laws of the Territory of Hawaii or the rules, regulations, orders or policies of the military authorities.” All civil courts were closed at that time. By General Orders No. 57,2 issued January 27, 1942, the local courts were authorized “to exercise certain of the powers normally exercised by them during the existence, of civil government.” This regulation provided that “the United States District Court for the Territory of Hawaii, the Supreme Court of said Territory, and the justices thereof, the circuit courts, circuit judges at chambers, land court, juvenile court, tax appeal court and the district magistrates are hereby authorized, as agents of the Military Governor, to exercise their respective functions according to law, as it existed immediately prior to the declaration of martial law,” subject to numerous restrictions. Among these were prohibitions against the exercise of jurisdiction of criminal cases and the empaneling of grand or petit juries.
The judicial status indicated by Order No. 57 appears to have persisted without material change until March, 1943. It would be a perversion of the truth to say that the courts were “open” during this period —certainly they did not function as a coordinate or independent branch of the government. So far as they were permitted to operate they did so “as agents of the Military Governor.” Like existing civil officials of all grades throughout the Territory, the courts were mere instruments of the commanding general. Moreover, because of the prohibition against the assembling or empaneling of juries they were wholly disabled from trying criminal cases in .the constitutional sense.
We intimate no criticism of what was done. Without doubt Governor Poindexter, the President, and the generals in command proceeded in the bona fide belief that the establishment of complete military rule was a course dictated by necessity. Nor are the courts entitled to set themselves up as boards of strategy to judge, after the event, whether the belief was warranted by the emergency.3 Certainly they may inquire no further than to consider whether the executive proceeded on reasonable grounds.4
We need comment but briefly on the dangers inherent in the Hawaiian situation or on the military importance of this exposed area. The Islands form the key outpost in the nation’s Western bastion of defense. As is now known, the surprise attack on Pearl Harbor was so devastating and the destruction wrought so nearly com-*580píete as to put the Islands in peril of actual seizure by the task forces of a powerful and determined enemy. While immediate steps were taken to convert ^awaii into a fortress, and while the Japanese ultimately met with vigorous opposition in other parts of the Pacific, the perils which beset this strategic area did not vanish overnight. It is the opinion of responsible military and naval authorities that as late as the spring of 1944 the Islands continued in imminent danger of attack from the air, of submarine forays and commando raids from the sea.5
Governmental and military problems alike were complicated by the presence in the Territory of tens of thousands of citizens of Japanese ancestry besides large numbers of aliens of the same race.6 Obviously the presence of so many inhabitants of doubtful loyalty posed a continuing threat to the public security. Among these people the personnel of clandestine landing parties might mingle freely, without detection. Thus was afforded ideal cover for the activities of the saboteur and the spy. In sum, the situation was such that informed leadership would be answerable at the bar of history if it presumed to take unnecessary chances.
But, it is said, there was no disorder in the Islands, and the courts were ready to function if only they were permitted to do so. Remembering the conditions which we have described the argument does not impress us. To function in criminal matters the civilian courts must assemble juries; and citizens of Japanese extraction could not lawfully be excluded from jury panels on the score of race — even in cases of offenses involving the military security of the Territory. Indeed the mere assembling of juries and the carrying on of protracted criminal trials might well constitute an invitation to disorder as well as an interference with the vital business of the moment. And the summary punishment of criminal offenders of every sort might conceivably serve to discourage the commission of offenses immediately endangering the general security.
The question, then, is not whether the temporary administration of criminal justice by military tribunals was warranted by the emergency, but whether such a displacement of the judicial power can fairly be said to fall within the term “martial law,” as that term is generally understood7 — more particularly as it was employed in § 67 of the Organic Act. Presumably Congress intended to authorize the institution by the Governor, with Presidential approval, of such measures of military control as might be thought necessary to deal with any situation possible of occurrence in this remote archipelago, the turbulent history of which was fresh in the minds of the legislators. The emergency arising as the result of insurrection or invasion, or the imminent threat of either, might be of brief duration. Conceivably it might persist for a long time. If, in the latter event, it should become necessary to close or restrict the functioning of the civilian courts, the administration of ordinary criminal justice could not proceed except through the medium of military tribunals. Congress can not be thought to have intended that the suppression or punishment of crime must await the return of tranquillity or the resumption of civil authority.
The framers of the Act took verbatim from the Constitution of the Republic the provision authorizing the suspension of the writ and the placing of the Islands under martial law in the named contingencies.8 Five years before its adoption by Congress that provision had been interpreted by the Supreme Court of the Republic in the case of In re Kalanianaole, 1895, reported in 10 Haw. 29. The decision, we think, throws important light on the intent of Congress as later given expression in the law providing for the organization of the Territory.
The case of Kalanianaole arose out of *581a local insurrection which had been quickly suppressed. The courts were closed during its continuance and were not soon restored to the- unobstructed exercise of their jurisdiction. Martial law had been declared by the president of the Republic and a military commission set up for the trial of such persons as might be brought before it. Kalanianaole was tried and convicted by the commission on the charge of misprision of treason, an offense denounced by a statute of the Republic and normally triable only in the civil courts. His petition for release on habeas corpus, addressed to the Supreme Court of the Republic, was denied, the court holding that he was lawfully imprisoned pursuant to the judgment of the military commission. It was thought that the setting up of the commission and the trial by it of civilian offenders was an incident of the institution of martial law, hence was impliedly authorized by Article 31 of the Constitution.9
We think little is to be gained by a review or an extended citation of the general authorities dealing with the subject of martial law.10 The term “martial law” appears, indeed, incapable of exact definition.11 It is probably just to say that the term, consistently with constitutional principles, comprehends every measure necessary to preserve the life of the state and to repel the enemy. It must not be forgotten that a cardinal purpose for which the federal constitution was set up was to “provide for the common Defence.” Art. 1 § 8, cl. 1.
In Ex parte Milligan, 71 U.S. 2, 127, 4 Wall. 2, 127, 18 L.Ed. 281, the majority of the court recognized that in circumstances where the courts are actually closed there is necessity to furnish a military substitute in the administration of ordinary criminal justice for the duration of the emergency. The constitutional guarantees of indictment and trial by jury do not extend to such a situation, for, as said in Ex parte Quirin, 317 U.S. 1, 39, 63 S.Ct. 2, 16, 87 L.Ed. 3, while presentment by grand jury and trial by jury were familiar machinery for criminal trials at the time of the adoption of the Constitution, the procedures were unknown to military tribunals. “The latter,” said the Court, “are usually called upon to function under conditions precluding resort to such procedures.” The Court added that “it was not the purpose or effect of § 2 of Article III, read in the light of the common law, to enlarge the then existing right to a jury trial.”
At the time appellee White was tried complete martial rule was in effect and the civil courts were disabled from functioning. The situation necessitated his trial by the military. Moreover, authority for such procedure is implicit in the act of Congress providing for the organization of the Territory.
We turn now to the case of appellee Duncan.
The legal situation in the Islands at the time of his trial differed markedly from that earlier prevailing. In January, 1943, a conference was held in Washington, participated in by Governor Stainback of the Territory, the Secretary of the Interior, the Secretary of War, and the Attorney General. The conference resulted in the issuance by Governor Stainback, on February 8, 1943, of a proclamation which had the prior approval of the President. This document proclaimed that on the thirtieth day thereafter the Governor of Hawaii and the other civilian officers and agencies of the federal, the territorial, and the *582local governments, would resume their respective jurisdictions, functions, and powers, according to law, with respect to a very great number of matters, and others necessarily related thereto.12 It is said that the proclamation had the effect of restoring all but a minor part of the civil authority.13 The resumed functions included “judicial proceedings, both civil and criminal,” except (1) criminal prosecutions against members of the armed forces; (2) civil suits against members of the armed forces in respect of any act or omission certified by the commanding general to be in the line of duty; and (3) criminal prosecutions for violations of military orders.
For immediate purposes, the pertinent exception to the resumption by the civil courts of full criminal powers is the one relating to “criminal prosecutions for violations of military orders.” The proclamation, according to its terms, became effective March 10, 1943. On that date commanding General Richardson issued General Orders No. 2,14 one paragraph of which provided in part that provost courts and military commissions should have jurisdiction and power to try any case involving a violation by a civilian of the rules, regulations, proclamations, or orders of the military authorities, or of the laws of war.
Paragraph 8.01 of these orders provided, in substance, that no person shall commit “an assault or an assault and battery” on any member of the military police or other military or naval personnel, “with intent to resist, prevent, hinder, or obstruct him in the discharge, execution or performance of his duties as such.” No specific penalty was prescribed for a violation of the prohibition except that elsewhere in the order it is stated that the provost court will be guided, but not bound by the penalties prescribed by the laws of the Territory in like cases. It was under paragraph 8.01 that Duncan was tried in the provost court in February of the following year.
Whether this provision of General Orders No. 2 was valid as applied to civilians poses a question of unusual delicacy and importance. The General Orders, as well as the proclamation of the Governor, proceeded on the express assumption that a state of martial law was to continue in effect. The proclamation, however, did not purport to render the civil authority thereafter subordinate to the military. The contrary, indeed, was to be the case in respect of all powers resumed. The courts were no longer to operate as agencies of the general in command; clearly, they were intended to function as a coordinate branch of the civil government which Congress had provided for the Territory. Thenceforward they were open. They were in full possession of the power to empanel grand and petit juries and were not in terms disabled from proceeding in the traditional manner to the trial of any criminal offense denounced by Hawaiian laws.
The first point to be noticed is that the conduct proscribed by paragraph 8.01 of the General Orders is beyond the scope of the Articles of War.15 It affects civilians in no way connected with the military or naval forces, and therefore not normally amenable to military discipline. Again, there is no specific act of Congress authorizing the promulgation of the regulation or confirming its validity by making the violation of such a military order a criminal offense. Congressional authority can be looked for only in the provision of the Organic Act authorizing resort to martial law.
It is to be recalled that in respect of the military control of Japanese resident on the Pacific Coast, Congress felt it appropriate to denounce as a misdemeanor any infraction of the pertinent military orders relating to their control and removal; and offenders were made subject to trial exclusively in the civil courts. See Act of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a; cf. Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. It is true that martial law had not formally been proclaimed in the affected area; but a state of qualified martial law nevertheless existed there more *583drastic, in certain of its aspects, than that prevailing' in Hawaii during the period now in question. However, as later pointed out, we think it is not a necessary-consequence of the congressional policy manifested in this instance that appropriate military orders affecting civilians are invalid in the absence of express legislative sanction.
The law of Hawaii defines th.e offense of assault and battery and prescribes penalties for its violation.16 There is a territorial statute imposing a much heavier penalty for the commission of “an assault or an assault and battery on any public officer, civil or judicial, with intent to resist, prevent, hinder or obstruct him in the discharge or execution of his duty as such.”17 There is however, no statute punishing a battery of that aggravated nature committed upon personnel of the armed forces while acting in the line of duty; and it was the latter offense that was proscribed by the regulation under which Duncan was tried.
It is clear that the civil courts were without jurisdiction to try one accused of an offense of this character, unknown, as it was, to Hawaiian law. In the absence of enabling legislation their powers extended no farther than to try those accused of offenses denounced by statute. In sum, even in the absence of the prohibition contained in the Governor’s proclamation, they were not competent to try Duncan for the offense with which he was her'e charged. It thus becomes necessary to consider whether the military were competent to define such conduct as an offense and proceed to the trial and punishment of one accused of it.
The condition of emergency existing in the Islands has already been noted. It was testified by General Richardson and by Admiral Nimitz that these conditions prevailed as late as March and April of 1944. In the opinion of these responsible commanders the danger of attack and invasion, if less serious and pressing than before, still continued imminent. They characterized the Hawaiian area as an integral part of the theatre of actual military operations in the Pacific. General Richardson expressed the belief that the continuance of martial law, to the extent it was then effect in the Territory, was necessary not only for the safety of the Islands but for the defense of the nation. That the President and the Governor were of the same opinion is evidenced by the proclamation, one provision of which, as has been seen, contemplated the continued prosecution in the military courts of those accused of the violation of military orders.
In Kiyoshi Hirabayashi v. United States, supra, 320 U.S. at page 93, 63 S.Ct. at page 1382, 87 L.Ed. 1774, the Court observed that the war power of the national government extends to every matter and activity so related to war as substantially to affect its conduct and progress. “The power,” said the Court, “is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution, and progress of war. [citing cases] Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of threatened injury or danger and in the selection of the means for resisting it. [citing cases] Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of war-making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.”
In emergencies arising out of total war there are fields in which civilian conduct is necessarily impinged upon by regulations of the military, even in areas which are not regarded as part of the theatre of actual warfare. Of this we have had during the existing emergency many familiar examples, such as regulations concerning blackouts, dimouts, curfews, and the like —all of them recognized as essential to *584military security. The power to punish infractions of military regulations of this type must of necessity reside somewhere. If it has not by legislation or municipal ordinance been delegated to the ordinary courts or made subject to the authority of the civil police, the power must perforce exist in the military arm of the government acting through the medium of commissions or like tribunals.
Paragraph 8.01 of the General Orders is a regulation of this type. As seen, it had no counterpart in the statutes of the Territory. Nor was there statute 'or ordinance in existence making the infraction of it an offense triable in the courts. It can hardly be doubted that the provision was a reasonable measure. We are not able to say that, under the conditions shown to exist in this vital area, an assault upon a sentry or a member of the military police with intent to obstruct him in the discharge of his duty, was an offense of so’ little consequence to the public security that it called for no punishment at all or that its punishment in the civil courts as a simple battery was adequate to meet the needs of the hour. That Duncan’s offense was of this aggravated nature the record does not admit of doubt.
Whether, in the situation prevailing in the Islands since March 1943, the military are competent to define and punish ordinary civilian offenses punishable as of course in the civilian courts is a question that is not before us.
There was nothing in the showing made in either of these cases which would warrant release on habeas corpus on grounds having to do with the fairness of the trials in the provosL courts. Nor did the court below make any finding of unfairness in the conduct of the trials. The writs should have been discharged and the petitioners remanded to custody.
The judgments in both cases are reversed.
So far as here pertinent, § 67 of the Organic Act provides: “The governor shall be responsible for the faithful execution of the laws of the United States and of the Territory of Hawaii within the said Territory, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the Territory of Hawaii, * * * to prevent or suppress lawless violence, invasion, insurrection, or rebellion in said Territory, and he may, in case of rebellion or invasion, or imminent danger *579thereof, when the public safety requires it, suspend the privilege of the writ of habeas corpus, or place the Territory or any part thereof, under martial law until communication can be had with the President and his decision thereon made known.” SI Stat. 153, § 67, 48 U.S.C.A. § 532.
This order supplemented General Orders No. 29, issued December 16, 1941.
Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 87 L. Ed. 1774.
Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375.
General Richardson and Admiral Nimitz so téstified on the hearing below. They stressed, also, the various considerations outlined in this portion of the opinion.
According to the record, 32.36% of the total population of Hawaii in 1940 was comprised of persons of Japanese ancestry or nativity.
Consult Wiener, A Practical Manual of Martial Law (1940), 10, where the author says: “In its broad sense, martial law is the carrying on of government in domestic territory by military agencies, in whole or in part, with the consequent supersession of some or all civil agencies.”
The provision was contained in Article 31 of the Hawaiian Constitution.
The opinion in the ease was written by Justice Erear, later Governor of the Territory.
The authorities have been collected by law writers in recent articles undertaking to discuss the subject in the light of the present emergency and are readily available to the general reader. Of. Charles Eairman, The Daw of Martial Rule and the National Emergency, published in Harvard Law Review, June 1942; Archibald Eng, The Legality of Martial Law in Hawaii, Vol. XXX California Law Review, Number 6, September 1942. Consult generally, Wiener, A Practical Manual of Martial Law (1940).
Consult, for example, the discussion of Chief Justice Chase in his concurring opinion in Ex parte Milligan, 71 U. S. 2, at page 141, 4 Wall. 2, at page 141, 18 L.Ed. 281. In important respects his definition of the term is unsatisfying. In the year 1857 Attorney General Cush-ing remarked on “the extreme want of preciseness” with which the subject had been discussed by common law authorities and commentators. These, he said, afforded “no clue to what martial law, as understood in England, really isand he observed that in this country the situation was “even worse.” 8 Op. Atty. Gen. 365, 367, 368.
In passing, it is important to note a provision to the effect that “nothing in this proclamation shall operate to invalidate any conviction * * * which occurred or shall occur prior to the thirtieth day hereafter.”
in the trial below Governor Stain-back testified that in his opinion about 95% of the civil powers were restored.
These were intended as a revision of ail previous general orders to conform to the changed legal situation.
10 U.S.C.A. §§ 1471-1593.
Revised Laws of Hawaii 1935, O. 166, §§ 5651, 5659.
Revised Laws of Hawaii 1935. c. 166, § 5657. The penalty prescribed is a fine of $1,000 or imprisonment for not more than one year. The penalty for sim- . pie assault and battery, as prescribed by the statute relating thereto,* is a fine of not more than $100 or imprisonment for not more than six months.