WINTER, Circuit Judge:
A group of members of the armed forces stationed at Fort Jackson, South Carolina, some of whom were confined to the stockade and some of whom were confined to their barracks while awaiting courts-martial on various charges under Articles 89, 92 and 116 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C.A. §§ 889, 892, 916, sought a writ of habeas corpus to effect their pretrial release. Named as respondents were the Commanding General of Fort Jackson, South Carolina, and the Secretary of the Army of the United States. The district judge denied them relief, confining his decision to the holding that petitioners had failed to exhaust all remedies within the hierarchy of the military establishment in that they had not sought habeas corpus relief from the Court of Military Appeals.
An immediate appeal to us was taken. We advanced the appeal; but, in the meantime, petitioners sought habeas from the Court of Military Appeals; and, on May 5, 1969, two days before argument scheduled before us, it entered an order denying the writ, with one judge dissenting on the ground that he would have required the Secretary and the Commanding General to show cause why the relief sought should not be granted.1 In argument, we are also advised that charges have been dropped against petitioners Mays and Duddie, and that petitioner Chaparro is being discharged, so that as to them the case is moot.
The essential ground urged upon the district court for issuance of the writ was that petitioners were unlawfully restrained of their liberty beyond the usual restraint which attaches to one who is a member of the military. The conclusion was premised upon the claim that, properly construed, Articles 10 and 13 of the UCMJ authorize pretrial confinement only where reasonably necessary to secure presence at trial, that, in the case of petitioners, confinement to the stockade or to their barracks is not necessary to secure presence at trial, and that, in fact, since the charges against them stem from their purported exercise of their First Amendment rights to speak, to assemble and to associate in demonstration of their opposition to the war in Vietnam, their pretrial confinement is for the purpose of punishing them for having exercised their constitutional rights and not to secure their presence at trial.
Although we express no view on the necessity of exhaustion by application for a writ of habeas corpus to the Court of Military Appeals, in view of the fact that by the time the appeal came on for argument before us, exhaustion had clearly occurred, petitioners contend that we should decide the case by directing the district court to issue the writ forthwith. Petitioners represent to us that if we remand the case to the district judge they intend to present no additional evidence and will rely instead solely on the allegations contained in the petition for the writ and respondents’ answer, which is supported by a large number of affidavits of what transpired. These, they assert, provide a sufficient evidentiary basis from which we may determine the facts to be as they contend.
Explicit in petitioners’ contention is that Articles 10 and 13 UCMJ limit pretrial confinement solely to insuring presence at trial. We do not agree that these [445]*445Articles should be read so restrietively. The text of Articles 10 and 13, preceded by a portion of the text of Article 9 necessary to show the distinction between “arrest” and “confinement,” is set forth below.2 While it is true that Article 13 contains the clause specifying that “the arrest or confinement imposed on him [shall not] be any more rigorous than the circumstances require to insure his presence,” Article 10 permits arrest or confinement “as circumstances may require.” Presence at trial may be a significant — indeed, the most significant— factor to be considered in the aggregate of circumstances indicating the need and propriety of arrest or confinement; but it is not the sole one. We read Article 10 as permitting a variety of factors to be considered, and Article 13, not as a limitation on the broad grant contained in Article 10, but as a limitation on the quality of arrest or confinement once either of the latter has been determined to be proper.
The limitations on the broad, unbridled discretion which Article 10 grants are contained in the Manual for Courts-Martial, United States (1968), ¶ 20c, promulgated by the President under the authority of Article 36, 10 U.S.C.A. § 836, the full text of which is also set forth below.3 This regulation established a dual basis for determining the necessity of confinement, i. e., to insure presence or because of the seriousness of the offense charged. While stated in the disjunctive, these tests may be interrelated. Thus, what may not be a very serious charge when considered abstractly may be serious when viewed in the light of the potential penalty if guilt is found or in the light of the serviceman’s previous record of disrespect for authority, or the pend-ency of a not very serious charge may raise a substantial risk of presence at trial where he has earlier demonstrated [446]*446that his obligation to remain with his unit weighs lightly with him. For a thorough discussion of the historical basis of Articles 10 and 13 and the expression of the view, by dictum, that the only goal of pretrial confinement is to insure presence at trial, see, United States v. Bayhand, 6 USCMA 762, 21 CMR 84, 90 (1956). See also, United States v. West, 12 USMCA 670, 31 CMR 256, 259 (1962).
Respondents urge upon us that we should vacate the order of dismissal of the district judge and remand the case to him for determination on the issues which he did not reach, although, alternatively, respondents contend that we may conclude to deny the writ on the merits. In argument, respondents state that they do not presently intend to offer additional evidence before the district judge if we adopt the suggestion of remand, but they do not foreclose that possibility. We agree that the order of the district judge should be vacated and the case remanded for determination on the merits of whether respondents exceeded the authority vested in them by Article 10, as limited by 20c of the Manual, in ordering petitioners’ pretrial confinement. As we read the record, it will require supplementation to provide a basis for a determination on the merits.
Ordinarily, an appellate court does not make findings of fact in the first instance; that function is peculiarly one for the trial judge. It is true that the proof before the district judge was exclusively documentary. It consisted of various reports and affidavits. Our examination of the documents, however, does not show that the reasons for petitioners’ confinement is undisputed. Colonel Thomas Maertens, who ordered petitioners’ confinement to the stockade or to their barracks, acted as to some of petitioners on the recommendation of Captain Francis Wishart.
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WINTER, Circuit Judge:
A group of members of the armed forces stationed at Fort Jackson, South Carolina, some of whom were confined to the stockade and some of whom were confined to their barracks while awaiting courts-martial on various charges under Articles 89, 92 and 116 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C.A. §§ 889, 892, 916, sought a writ of habeas corpus to effect their pretrial release. Named as respondents were the Commanding General of Fort Jackson, South Carolina, and the Secretary of the Army of the United States. The district judge denied them relief, confining his decision to the holding that petitioners had failed to exhaust all remedies within the hierarchy of the military establishment in that they had not sought habeas corpus relief from the Court of Military Appeals.
An immediate appeal to us was taken. We advanced the appeal; but, in the meantime, petitioners sought habeas from the Court of Military Appeals; and, on May 5, 1969, two days before argument scheduled before us, it entered an order denying the writ, with one judge dissenting on the ground that he would have required the Secretary and the Commanding General to show cause why the relief sought should not be granted.1 In argument, we are also advised that charges have been dropped against petitioners Mays and Duddie, and that petitioner Chaparro is being discharged, so that as to them the case is moot.
The essential ground urged upon the district court for issuance of the writ was that petitioners were unlawfully restrained of their liberty beyond the usual restraint which attaches to one who is a member of the military. The conclusion was premised upon the claim that, properly construed, Articles 10 and 13 of the UCMJ authorize pretrial confinement only where reasonably necessary to secure presence at trial, that, in the case of petitioners, confinement to the stockade or to their barracks is not necessary to secure presence at trial, and that, in fact, since the charges against them stem from their purported exercise of their First Amendment rights to speak, to assemble and to associate in demonstration of their opposition to the war in Vietnam, their pretrial confinement is for the purpose of punishing them for having exercised their constitutional rights and not to secure their presence at trial.
Although we express no view on the necessity of exhaustion by application for a writ of habeas corpus to the Court of Military Appeals, in view of the fact that by the time the appeal came on for argument before us, exhaustion had clearly occurred, petitioners contend that we should decide the case by directing the district court to issue the writ forthwith. Petitioners represent to us that if we remand the case to the district judge they intend to present no additional evidence and will rely instead solely on the allegations contained in the petition for the writ and respondents’ answer, which is supported by a large number of affidavits of what transpired. These, they assert, provide a sufficient evidentiary basis from which we may determine the facts to be as they contend.
Explicit in petitioners’ contention is that Articles 10 and 13 UCMJ limit pretrial confinement solely to insuring presence at trial. We do not agree that these [445]*445Articles should be read so restrietively. The text of Articles 10 and 13, preceded by a portion of the text of Article 9 necessary to show the distinction between “arrest” and “confinement,” is set forth below.2 While it is true that Article 13 contains the clause specifying that “the arrest or confinement imposed on him [shall not] be any more rigorous than the circumstances require to insure his presence,” Article 10 permits arrest or confinement “as circumstances may require.” Presence at trial may be a significant — indeed, the most significant— factor to be considered in the aggregate of circumstances indicating the need and propriety of arrest or confinement; but it is not the sole one. We read Article 10 as permitting a variety of factors to be considered, and Article 13, not as a limitation on the broad grant contained in Article 10, but as a limitation on the quality of arrest or confinement once either of the latter has been determined to be proper.
The limitations on the broad, unbridled discretion which Article 10 grants are contained in the Manual for Courts-Martial, United States (1968), ¶ 20c, promulgated by the President under the authority of Article 36, 10 U.S.C.A. § 836, the full text of which is also set forth below.3 This regulation established a dual basis for determining the necessity of confinement, i. e., to insure presence or because of the seriousness of the offense charged. While stated in the disjunctive, these tests may be interrelated. Thus, what may not be a very serious charge when considered abstractly may be serious when viewed in the light of the potential penalty if guilt is found or in the light of the serviceman’s previous record of disrespect for authority, or the pend-ency of a not very serious charge may raise a substantial risk of presence at trial where he has earlier demonstrated [446]*446that his obligation to remain with his unit weighs lightly with him. For a thorough discussion of the historical basis of Articles 10 and 13 and the expression of the view, by dictum, that the only goal of pretrial confinement is to insure presence at trial, see, United States v. Bayhand, 6 USCMA 762, 21 CMR 84, 90 (1956). See also, United States v. West, 12 USMCA 670, 31 CMR 256, 259 (1962).
Respondents urge upon us that we should vacate the order of dismissal of the district judge and remand the case to him for determination on the issues which he did not reach, although, alternatively, respondents contend that we may conclude to deny the writ on the merits. In argument, respondents state that they do not presently intend to offer additional evidence before the district judge if we adopt the suggestion of remand, but they do not foreclose that possibility. We agree that the order of the district judge should be vacated and the case remanded for determination on the merits of whether respondents exceeded the authority vested in them by Article 10, as limited by 20c of the Manual, in ordering petitioners’ pretrial confinement. As we read the record, it will require supplementation to provide a basis for a determination on the merits.
Ordinarily, an appellate court does not make findings of fact in the first instance; that function is peculiarly one for the trial judge. It is true that the proof before the district judge was exclusively documentary. It consisted of various reports and affidavits. Our examination of the documents, however, does not show that the reasons for petitioners’ confinement is undisputed. Colonel Thomas Maertens, who ordered petitioners’ confinement to the stockade or to their barracks, acted as to some of petitioners on the recommendation of Captain Francis Wishart. While Colonel Maertens’ affidavit that he took this action because it was necessary to insure petitioners’ presence at their courts-martial, and because of the seriousness of the charges against them, was made a part of respondents’ return to the petition for the writ, there is in the record a letter written by Colonel Maertens before execution of the affidavit, in which he stated in part that the reason for the confinement was “* * * in my judgment, the good order and the welfare of my entire brigade were seriously jeopardized.” The record contains a letter which represents that Captain Wishart was quoted by another member of the company— Private Huffman — of which petitioners Pulley; Thomas and Rudder are members, as stating “[t]here are people in this company who disagree with some of the army’s policies and with the war in Vietnam. Four are in the stockade. Three more are under arrest. It's wise not to get involved in these things. Because when I put someone in the stockade, I make sure he stays there for a good long time.” It was represented to us in argument that the testimony of Private Huffman, who apparently acted as an informer to his superiors with regard to the protest activities of some of petitioners, was more fully developed in an earlier proceeding conducted under Article 32, 10 U.S.C.A. § 832 — the administrative investigation to determine whether the charges against petitioners should be referred to a general court-martial. We are further told that the transcript of this testimony was not available to be made part of the record before the district judge when the matter came on for hearing before him.
In short, while there may be considerable evidence to demonstrate the legality of petitioners' confinement, we cannot say that the evidence is so one-sided that we should undertake a determination of that legality in the absence of findings of fact by the district judge. Colonel Maertens’ letter may be in conflict with his later affidavit. Captain Wishart’s reputed testimony may establish the predominant motive for confinement to be prohibited punishment. In either event, pretrial confinement may be illegal, and, since liberty is at stake, such an illegal confinement is a denial of constitutional right. If neither of the parties produces evidence to assist in a [447]*447resolution of the possible conflicts to which we have called attention, or to others which may be discovered as a result of a more detailed analysis of the record, it may well be that the district judge may wish to require the production of Colonel Maertens, Captain Wishart, or others, for interrogation as to possible inconsistencies between various explanations of the reasons for petitioners’ confinement that they may have advanced. We are certain that the district judge will be willing, as we have tried to do, to conduct the hearing and decide the merits of the controversy with due dispatch.
In remanding the case to the district judge, we note that, in colloquy with counsel during the argument which he heard, the district judge expressed a possible reservation concerning his jurisdiction to inquire into the validity of petitioners’ detention, aside from the question of whether petitioners had exhausted available remedies within the military organization. Indeed, respondents raise this point before us.
We think the matter of the jurisdiction of the district judge has been set-tied since the decision in Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 277 (1885). In that case, Dr. Wales, a medical director in the navy, was served with specifications of charges preferred against him and ordered to report to a general court-martial to be held at a future specified date. In the meantime, he was placed under arrest and confined to the limits of the City of Washington. He sought a writ of habeas corpus, which was denied on the ground that he was not suffering sufficient restraint to justify the issuance of the writ. Yet, in the discussion of the function of the writ, particularly as applied to one in the military or naval service, the opinion of the court leaves no doubt that as to pretrial custody the writ may issue to relieve an unusual restraint over and beyond the necessity of military rule and subordination.4 See also, United States ex rel. Brooks v. Clifford, 409 F.2d 700 (4 Cir., March 20, 1969); Hammond v. Lenfest, 398 F.2d 705 (2 Cir. 1968).
We have no doubt that confinement in the stockade or confinement to quarters would constitute such an un[448]*448usual restraint, unless respondents have not exceeded their discretion by reasonably concluding that confinement is necessary to insure petitioners’ presence at their court-martial or because of the seriousness of the charges against them, or both. As to these, the district judge will inquire.
Vacated and remanded.