dissenting.
I dissent from the majority opinion, since it ignores a very basic and fundamental issue: whether a writ of habeas corpus requires judicial inquiry beyond a lawful executive commitment. I believe that it does. Historically, the writ has been used to restrain the unbridled distribution of governmental power.1 Neither the executive nor the legislative may limit its use by the judiciary.2 In the appeal before this Court, none of the petitioners had been tried and convicted, yet they were subjected to: “beatings, deprivation of food, detention in solitary cells without bedding, punishment without due process of law and denial of medical care, visitation and mailing privileges.” 3 This arbitrary, unlawful detention while awaiting trial amounts to a denial of due process by an executive commitment which should not be tolerated. The judiciary is not helpless to correct these conditions because the writ of habeas corpus and due process are inseparable.4 I do not agree that the petitioners must seek relief from the federal court because none is available from the Courts of Indiana;5 therefore, I dissent.
. Meador, John Daniel, Habeas Corpus and Magna Carta (1966), The University Press of Virginia.
. Johnson v. Eisentrager (1950), 339 U.S. 763, at page 798, 70 S.Ct. 936, at page 954, 94 L.Ed. 1255. Justice Black stated in his dissent in which Douglas and Burton joined that: “Its use by courts cannot in my judgment be constitutionally abridged by Executive or by Congress.” Anglo-American Legal history gives considerable support to Justice Black’s assertion. William Holdsworth, A History of English Law, pp. 110, 118 (1926).
Under the Constitution of Indiana, Article 1, § 26 provides:
“Suspension of laws. — The operation of the laws shall never be suspended, except by the authority of the General Assembly.”
However, it appears that not even the General Assembly can suspend the privilege of the writ of habeas corpus unless there is a rebellion or invasion and then only if the public safety demands it. Article 1, § 27 provides:
“Suspension of habeas corpus. — The privilege of the writ of habeas corpus shall not be suspended, except in case of rebellion or invasion; and then, only if the public safety demand it.”
Clearly under the Indiana Constitution, the General Assembly can not regulate the writ of habeas corpus. A statute may expand its scope, but a statute may not restrict its proper function or suspend its use except as provided under the Indiana Constitution.
. Majority opinion, page 277.
. Meador, Habeas Corpus and Magna Carta, pp. 18, 19 discusses the origins of the due process concept as it developed in Anglo-American jurisprudence. He notes on page 19 that “In their struggle toward constitutionalism the common lawyers revitalized chapter 39 of Mag-na Carta to provide the principle — due process — by which, on habeas corpus, the legality of detention would be judged and to which, they asserted, even the King was subject.”
Reflecting upon the consequences of the Dar-nel’s Case tried in 1627, Meador noted “Its most immediate consequence was to set the stage for parliamentary debates the next year which led to the Petition of Right. The case is also noteworthy because it shows how the writ of habeas corpus is no greater protector of liberty than the judges’ view as to what constitutes lawful custody.”
(See also: Sir Edward Coke, The Second Part of the Institutes of the Laws of England, p. 50 (6th ed. 1681).)
.“Cruel and unusual punishments shall not be inflicted.” Constitution of Indiana Article 1, § 16. Not only has punishment been administered without a trial as required by due process of law, but the punishment administered here could be characterized as “cruel and unusual” even after trial and conviction. I do not think that it is absolutely necessary to bring a civil rights action under 42 U.S.C. § 1983 as suggested by the majority. The petitioners are entitled to immediate relief from the Indiana Courts. This is not a question of civil rights. It is a question of due process of law: under what conditions does a lawful executive commitment become unlawful as a violation of due process of law?