Ryak, C. J.
These cases involve the same questions. One of them was submitted on the argument of the other, and they will De considered together.
Upon the return of the sheriff to the writs of habeas corpus, the prisoners, who are relators here, put in traverses of the recitals of the complaint in the warrant issued by the justice of the peace, going to the merits. To these the state demurred. And the learned counsel for the relators now insist that this court must pass upon the merits as raised by the demurrers to the traverses. The learned circuit judge before whom the writs of habeas corpus were heard, is understood to have declined consideration of the merits, and to have passed upon the question of jurisdiction only. In this he was undoubtedly right. When a prisoner is held by legal process, the writ of habeas corpus does not operate, so to speak, by way of change of venue from the court or officer issuing the process of arrest, to the court or officer issuing the habeas corpus. [540]*540The latter writ, in such a case, raises only the question of j uris-dicfcion of the court or officer to issue the process of arrest. If anything can be settled by a long and uniform series of decisions in this court, this is. Re Booth, 3 Wis., 1; Re Booth and Rycraft, id., 157; Re Blair, 4 Wis., 522; Re O' Connor, 6 Wis., 288; Re Falvey, 7 Wis., 630; Re Boyle, 9 Wis., 264; Re Tarble, 25 Wis., 390; Re Perry, 30 Wis., 268; Re Crandall, 34 Wis., 177; Re Semler, 41 Wis., 517. This rule is not disturbed, but is understood to be recognized in effect, in the late case of Re Pierce, 44 Wis., 411.
This rule excludes from the consideration of this court all the questions discussed at the bar, except the jurisdiction of the justice of the peace of Jefferson county, as an examining magistrate, to entertain a complaint against the owners of the dam in Rock county as a nuisance, involving the jurisdiction of the circuit court of Jefferson county, of an information or indictment against the dam in Rock county.
This question was in Stoughton v. State, 5 Wis., 291, but is not noticed in the briefs of counsel or in the opinion of the court. The judgment against Stoughton was reversed on another ground. And so that case neither expresses nor implies any disposition of the question here.
The recital of the complaint in the warrant issued by the justice of the peace of itself suggests the dangerous ground on which the jurisdiction asserted is supposed to rest. This is not the fault of the complaint, which is well drawn. It is an inherent difficulty of the case.
If the dam in Rock county, as it is, were there by express authority of statute, it could not be indicted for overflowing lands and thereby creating sickness, etc., in Jefferson county. This is expressly decided in Stoughton v. State. The complaint therefore sets out with the charge that the defendants unlawfully maintain the dam across Rock river from shore to shore; that the river is de jure and de facto navigable above and below; that the dam has no slide or chute for the passage [541]*541of rafts, or for the ascent and descent of fish, and no lock for the passage of vessels.
The word “ unlawfully ” excluding permission of the legislature, the complaint so far is a complete chai’gethat the dam is maintained in violation of public law, and is therefore a public nuisance in Rock county, indictable there as such, without reference to injuries which it may cause in Jefferson county or elsewhere. R. S. 1858, ch. 41, sec. 2; R. S. 1878, sec. 1596; Barnes v. Racine, 4 Wis., 454; Enos v. Hamilton, 24 Wis., 658; Stevens P. B. Co. v. Reilly, ante, p. 237.
The complaint having thus charged that the dam is a public nuisance per sé in Rock county, proceeds to add that, “ by means of its being maintained,” the water of the river is held back in Lake Koshkonong, in Jefferson county, overflowing and damaging lands and highways there, creating nauseous smells injurious to health, and causing other injuries in that county.
It may be taken for granted that these averments would make a good complaint in a private action for injury suffered from the maintenance, of the public nuisance. The public only can prosecute a public nuisance, for its . general public injury. But an individual may maintain an action for damages caused by the nuisance, peculiar to himself, and not common to the public. In these private actions the nuisance is averred, with a joer quod setting up the peculiar injury to the plaintiff. The rule is, perhaps, nowhere better stated than by Shaw, C. J., in Atkins v. Bordman, 2 Met., 457. “ There is another class of cases where, although the act complained of may not be unlawful, or, if unlawful, not an infringement of any right of the plaintiff, no action can be maintained without alleging and proving a special and particular damage to the plaintiff; and the damages to be recovered are confined to an indemnity for the loss thus proved to have been sustained. The plaintiff sets forth the act done, and alleges that by means thereof he sustained the damage complained of, technically [542]*542called declaring with & per quod. As where the plaintiff complained that while he was proceeding along a navigable creek with his barge laden, etc., the defendant obstructed the creek, qoer quod the plaintiff was compelled to carry his goods around, at a great expense. In such case the action lies for the special damage immediately occasioned by the obstruction; but it would not lie for the obstruction itself, without special damage, because, although it wras an infringement of a public right, and so was unlawful, yet it was not an infringement of the peculiar right of the plaintiff. Rose v. Miles, 4 M. & S., 101. So for special damage occasioned by obstructing a highway. Greasly v. Codling, 2 Bing., 263. So by a proprietor of land through which a water-course runs, against a proprietor higher up, where the gravamen of the complaint against the upper proprietor was, that, by damming up the water above, it came with greater impetuosity, and thereby injured his banks. Williams v. Morland, 2 Barn. & Cress., 910; S. C., 4 Dowl. & Ryl., 583.”
This private action is, therefore, not for the nuisance, but for the injurious consequences of the nuisance. It is, of course, local. And when, as in this case, the cause of the injui’y is in one county, and the land injured in another, the question whether, at the common law, the venue must be in the county where the land injured lies, or may be laid in either county, is left in some doubt by the cases, with perhaps the weight of authority in favor of the general rule, that an action affecting realty must be brought in the county where the realty lies. It is not necessary here to pass upon that question, and the cases will not be reviewed. They are very fully stated in Worster v. Winn. Lake Co., 5 Foster, 525, and in Pilgrim v. Mellor, 1 Bradw., 448, in which opposite conclusions are reached. The doubt may perhaps be solved in this state by sec. 2619, R. S., which provides, that actions for injury to real property shall be brought in the county in which the subject of the action, or some part thereof, is situated Appar[543]*543ently the land injured is the sole subject of the action, exclusive of the cause of the injury; the cause being rather the ground of the action than the subject of it.
The venue of local actions rests entirely, in the absence of statute, upon the authority of adjudged cases. But the venue of indictments rests upon fundamental law, as old as Magna Oharta, entering into the provision of the constitution of the state. The decisions of courts upon the former can, therefore, have little or no influence on the latter.
A nuisance may be such per se, being in itself unlawful, and indictable without averment of injurious consequences, as unauthorized obstructions of highways by land or by water.. So a nuisance may be such by its consequences only, the thing being harmless and lawful per se, but becoming a nuisance by its injurious effects; as lime-kilns or glue factories. Slight v. Gutzlaff, 35 Wis., 675. The former may, perhaps, be called a nuisance in law; the latter, a nuisance in fact.
The nuisance here being stated to be a nuisance per se, or a nuisance in law, while what comes under the per quod would be the gravamen of a private action for private injury, it appears to be surplusage in an indictment. If an indictment in the very words of the complaint recited in the warrant before the court, against the proprietors of the dam in question, were found and tried in Rock county, proof of the averments showing it to be a public nuisance per se would entitle the prosecution to verdict and judgment without evidence of the averments under the per qrwd. Eor the dam would be a public nuisance without them, and they could not tend to aggravate its character. And it is difficult to comprehend why the venire of an indictment should have any effect in the evidence necessary to support it, except that evidence of the locus in quo might sustain an indictment in one county and defeat it in another. If an indictment should be found in this proceeding in Jefferson county, the same evidence would apparently support it there as in Rock county. And so the aver-[544]*544ments under the per quod are apparently immaterial to. change the venue of an indictment from Rock to Jefferson.
Indeed, it seems to have been formerly understood, that averments in an indictment of collateral facts happening in another county were void. Lady Russell's Case, Cro. Jac., 17.
The averments- under the per quod, and the argument that they give jurisdiction of an indictment in Jefferson county, appear to confound the private remedy for consequential injury to private right with the public remedy for public wrong against the nuisance per se itself; not for its injurious consequences, but because it has no right to be. Indeed, this was the effect of the argument in support of jurisdiction in Jefferson county. Ror it was contended that the dam might be indicted in any county where it caused injuries like those averred in Jefferson county; that is, that an indictment would lie against the thing, wherever a private action would lie for the consequences of the thing. The radical difficulty in the argument is, that an indictment is directed against the thing, as an offense against the public, while the private action at the common law goes upon the consequences of the thing only, for the recovery of damages for private injury. The maintenance of the nuisance is local in the county where it exists, though its effects may extend beyond the county. The dam here is none the less in Rock county, and subject to the jurisdiction of the circuit court of that county, though its injurious effects should extend to every county in the state through which Rock river runs.
It was said that though the complaint recited in the warrant perfectly describes a public nuisance per se in Rock county, yet the gravamen of the charge is what is called a nuisance in Jefferson county. It is difficult to understand how the effects of a public nuisance per se can create a separate nuisance; how a thing can be two public nuisances at once. Even in the case of a nuisance not unlawful in itself, but made so by its injurious effects, it is the thing itself which is the nui-[545]*545sanee, not the injurious effects. They are the only reason why the thing is a nuisance, the evidence of its being a nuisance. It is equally difficult to understand how immaterial averments should constitute the gravamen of a complaint or indictment, and the averments of the crime itself be held to be immaterial or only introductory. In the case of an indictment as for a nuisance of a thing lawful in itself, averments of the character introduced here under the per quod would be material to establish the nuisance. But here they are immaterial.
It was argued that the nuisance was partly in both counties, incomplete in either. That view does not appear to be sound in reason or on authority. The complaint shows that the dam is the nuisance, complete in Rock county; complete without reference to its effects in Jefferson county, or elsewhere. It is the corpus delicti. Its consequences are accidents, unaffecting its character. But if the position were correct, it could not affect the judgment of this case.
The vexed question whether and where, at the strict common law, unaided by statute, a crime partly committed in different counties could be prosecuted, was discussed at the bar with great learning and ability. Some of the late English text writers say that it could be prosecuted in either county; Their accuracy is more than questionable. Indeed, they appear to be contradicted by the recitals in the statute 2 and 3 Edw. 6, ch. 24, which appears to be authoritative on that point. “ Where it often happeneth and cometh in ure in sundry counties of this realm,. that a man is feloniously stricken in one county, and after dieth in another county, in which case it hath not been founden by the laws or customs of this realm, that any sufficient indictment thereof can be taken in any of the said two counties, for that, by the custom of this realm, the jurors of the county where such party died of such stroke, can take no knowledge of the said stroke, being in a foreign county, although the same two counties and places adjoin very near together; ne the jurors of the county [546]*546where the stroke was given, cannot take knowledge of the death in another county, although such death most apparently come of the same stroke: So that the King’s majesty, within his own realm, cannot, by any laws yet made or known, punish such murderers or manquellers, for offenses in this form committed and done; nor any appeal at some time may lie for the same, but doth also fail, and the said murderers and man-quellers escape thereof without punishment, as well in cases where the counties where such offenses be committed and done, may join, as otherwise where they may not join. And also, it is a common practice amongst errant, thieves and robbers in this realm, that after they have robbed or stoln in one county, they will convey their spoil, or part thereof so robbed and stoln, unto some of their adherents into some other county, where the principal offense was not committed ne done, who, knowing of such felony, willingly and by false covin receiveth the same: In which case, although the principal felon be after attainted in one county, the accessary escapeth by reason that he was accessary in another county, and that the jurors of the said other county, by any law yet made, can take no knowledge of the principal felony ne attainder in the first county, and so such accessaries escape thereof unpunished, and do often ¡put in ure the same, knowing that they may escape without punishment.” The statute proceeds to enact that when one is stricken or poisoned in one county, and dies in another, then an indictment found in the county where death happens shall be good, as if the stroke or poisoning had been in it. It further enacts, that when any felony shall be committed in a county, and one shall be accessary to the felony in another eounty, the accessary may be indicted in the county in which he was accessary, as if the felony had been committed within it. Doubtless this statute came to us with the common law; but so far as it bears on the question here, it is confined to homicide only. Some text writers apply the rule of the statute to nuisances, in the light in which-the nuisance [547]*547here is now considered. But their text does not seem to be supported by authority. No English statute, prior to the revolution, applying the rule to nuisances, is cited or known. A very learned and interesting discussion of the general question will be found in Gawen v. Hussee, Dyer, 38 a.
Such being the state of the common law when the constitution of the state was adopted, the next and main question is the construction of the clause of that instrument on the subject. In England a distinction seems to have been made between felonies and misdemeanors. Such a distinction cannot be upheld here, because the clause in the constitution covers all prosecutions by indictment or information. It provides that the accused. shall be entitled to a trial by a jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law. The construction of this provision, as it bears upon this case, appears to be a question of first impression in this court.
State v. Main, 16 Wis., 398, so far as it has any bearing here, merely holds that the provision in question has no application to crimes against the state, committed outside of the state by citizens of the state. State v. Pauley, 12 Wis., 537, was a case of homicide, upholding a statute very similar to ch. 24, 2 and 3 Edw. 6, and affirming, rather than disaffirming, the view here taken of the common laAV and of the English statute.
Doubtless, the rule of the strict common law was defective in some cases, as pointed out in the statute of Edw. 6. Crimes may sometimes be composed of several acts, which may be done in different jurisdictions, and these should be punishable somewhere. The difficulties which might arise under the common law, appear to have been in the minds of the framers of the constitution. For the clause under consideration does not provide, as the common law did, for trial in the county in which the offense is committed; but for trial in the county or [548]*548district wherein the offense is committed, which county or district shall be previously ascertained by law. This very peculiar language is obviously designed to avoid the difficulties which had arisen at the common law, without depriving the accused of trial by a jury of the vicinage. Hitherto this clause appears to have received no construction in this court.
In State v. Pauley, the late Mr. Justice Paine apparently overlooked the peculiar language of the constitution, and not unnaturally. That was a case of homicide, where the wound had been inflicted in one county, and death had ensued in another; the indictment being found in the county of the death. The court held the common-law meaning of the word county, in the clause under consideration, as controlled by the statute of Edw. 6; and therefore sustained the state statute authorizing the indictment where it was found, and the indictment.
In the later case of State v. Main, the same learned and lamented judge makes no express comment on the language of the constitution; but it appears to have been in his mind, that the legislature might establish a district within the state, for the trial of offenses committed without the state.
The words county or district, as used in the clause, must both be held to have a meaning and a use. It is unnecessary here to give an authoritative construction of the whole scope of the clause, but only so far as its construction is involved in the question under consideration. The legislature takes express power to provide by statute for trial of offenses in • the county or district in which the offenses shall have been committed. Whether the legislature could appoint a district greater or less than the county, for trial of a crime complete within a county, is very doubtful, but is a question not in this case. But the legislature clearly takes power to provide for the trial of crime partly committed in several counties, in one or any of those counties. So it apparently takes power to provide for a district, composed of two or more counties, for the trial of crime, when it may be doubtful in which of the [549]*549counties of the district the crime is committed. Possibly, the history of the difficulties at the common law, of sometimes finding a venue for the prosecution of crime, and the peculiar language used, should be held to limit the application of the clause to the two classes of cases suggested. That is not determined here. But those cases appear to comply with all the language of the clause; perhaps exhaust the purpose and force of the clause.
This construction has the sanction of contemporaneous exposition. For secs. 7, 8 and 9, ch. 172, R. S. 1858, on which Mr. Justice Paine comments in State v. Pauley, are found in ch. 141, R. S. 1849, and State v. Pauley may be taken as an affirmance of the legislative power to pass them.
Sec. 7 provides, that offenses committed on the boundary line of two counties, or within a hundred rods of it, may be prosecuted in either county. Sec. 8 provides, that when a wound is given or poison administered in one county, and death ensues in another, the prosecution may be in either. Sec. 9 provides, that when a wound is given or poison administered within or without the state, and death ensues in any county of the state, the crime may be prosecuted in that county. These sections were framed by very intelligent gentlemen, some of them being distinguished members of the bar, in the same year in which the constitution was adopted. And they are plainly founded on the clause of the constitution in question. If’ the clause in the constitution had followed the strict common law, these sections would apparently have been invalid. This was felt by Mr. Justice Paine in State v. Pauley, and led him to invoke the aid of the statute of Edw. 6.
If a dam, being a public nuisance, were on the confines of two counties, it might probably be indicted in either, under sec. 7, ch. 172 of 1858; perhaps, if it were within a hundred rods of the county line. Possibly it would be competent for the legislature to provide, that a darn situate in one county, but creating injurious effects in several, might be indicted in [550]*550either. That question is not determined hére, because there is no such statute. But, in the absence of such legislation, a dam more than a hundred rods from a county line can be indicted in its own county only.
It is within the knowledge of one of the associate justices of this court, that an eminent circuit judge, who now adorns the bench of the supreme court of the District of Columbia, held that his court in Waukesha county had no jurisdiction of the indictment of a dam in Racine county, asserted on grounds similar to those urged here; and that, soon after, the legislature rejected a bill introduced to give such jurisdiction to the circuit courts.
The briefs of counsel on both sides display much learning and research. But the cases elsewhere bearing on the question are few, and give little aid to this court in passing upon what is mainly a constitutional question.
In State v. Lord, 16 N. H., 357, the dam was in Maine, and .the injurious effects in New Hampshire. And the court holds the indictment in New Hampshire good, although the dam was out of its jurisdiction. The opinion, though written by a very able judge, is curt and unsatisfactory. The difficulty of remedy in the case is perhaps its best excuse. But it has somewhat the look of one of the hard cases which are apt to make bad law.
In State v. Babcock, 1 Vroom, 29, the nuisance was on the soil of New Jersey, but within the jurisdiction of New York, by compact between the two states; the injurious effects being in New Jersey. And the court adjudges the indictment in New Jersey bad; holding that the jurisdiction of an indictment is in New York. M. & M. R. R. Co. v. Ward, 2 Black, 485, is an instructive case on this point, tending strongly to confirm the view of this court.
It would be difficult to find two decisions more directly in conflict than State v. Lord and State v. Babcock. There might have been more color of right for entertaining jurisdic[551]*551tion in New Jersey than in New Hampshire. Both cases are very clearly distinguishable from one where the nuisance is within the state, and there is one fomm of undoubted jurisdiction. Neither of the cases proceeds upon statute. And this court is not prepared to say, that a statute authorizing the indictment of one who maintains a nuisance without the state, in a county of this state injuriously affected by it, would not be a valid enactment. Nor is it doubted that a private action would lie in this ptate for peculiar injury to property here, caused by such a nuisance. Ruckman v. Green, 9 Hun, 225.
The case most directly in point is Commonwealth v. Lyons, 1 Penn. L. J. R., 497, in which it is held, that an indictment may be found in the county of a dam, which is a nuisance only by its effects in an adjoining county. The decision is in a court of sessions; but the brief opinion is delivered by a very eminent jurist. And the judgment appears to preclude the jurisdiction claimed here in Jefferson county.
People v. Rathbun, 21 Wend., 509, and People v. Adams, 3 Denio, 190, appear to have no bearing on the question. The former was an indictment for uttering and publishing forged commercial paper. The forgeries were mailed by the defendant in one county to an agent in another, to be there used. The court very properly holds, that the littering and publishing was in the latter county. The latter of these cases was an indictment for obtaining money by false pretenses. The false pretenses consisted of papers executed in Ohio, and the money was obtained by drafts drawn in Ohio. These were sent to New York by innocent agents; and the money there obtained by the defendant through the agents. The court, no doubt correctly, held that the offense of obtaining the money by the false pretenses was committed in New York, though the papers were prepared in Ohio; and that the personal presence of the defendant in New York, when the money was obtained, was not essential to his guilt. The offense was not in [552]*552the preparation of the papers, but in the use made of them. To similar effect is People v. Griffin, 2 Barb., 427, where it is •held, that a threatening letter mailed in one county to a person in another, is delivered in the latter county, and the writer there indictable. These cases appear to follow an old and generally recognized rule. Butterfield v. Windle, 4 East, 385. See, however, Ex parte Smith, 3 McLean, 121.
King v. Coombes, 1 Leach, 388, appears to have proceeded upon the statute of Edw. 6, making the place of death the place of jurisdiction. Queen v. Cotton, 1 Ellis and E., 203, turns entirely upon the construction of a statute giving special local jurisdiction. State v. Graham, 15 Richardson, 310, and Wertz v. State, 42 Ind., 161, are cases of variance. Some other cases were cited, but their bearing on the question is at least very remote.
If the argument for the state were well founded, that the dam in question was a nuisance only by its aggregate effects in different counties, it might possibly.be that it could not be indicted in either, for that appears to have been the common, law. And there is no statute authorizing its indictment in either county, as in the case of homicide.
It is proper to remark here that, on the authority of State v. Babcock and Commonwealth v. Lyons, as well as on principle, where a nuisance which is such by its effects only, is indicted in the county in which it is, its effects in other counties going to show that it is a nuisance may be given in evidence.
Hitherto the liability of the dam to indictment has been considered in an impersonal view. But it is to be indicted in the persons of the relators and their codefendants, who are liable to punishment for its maintenance. They are not charged with having personally done anything in Jefferson county. They are charged only with the maintenance of the dam in Rock county, per quod injury has ensued in Jefferson county. The sole offense charged against them is in Rock county. The [553]*553consequences averred in Jefferson, count jare not even averred to be designed. These ensue by a law of nature, from the act of the relators and their codefendants in Rock county. Their act does not even, in a proper sense, set the waters of the river back in Jefferson county. It only prevents the waters of the river from flowing naturally. The waters which overflow at Lake Koshkonong come from above, and not from below. Assuming the dam to be a nuisance, the defendants are liable for that, but criminally liable only in a county in which they do the act which produces that effect. In the present state of the law, they have a right to invoke the constitution, and to claim a trial in the county wherein their offense has been committed; and no court has right to deny it.
In the administration of criminal law, it is essentially dangerous to adopt new or doubtful theories of jurisdiction. In tk% absence of statute constitutionally passed, established and ancient ways are safest. A free common-law people ought to be jealous of the right of trial in criminal cases by a jury of the vicinage. One inroad on this right might sanction another, until one of the most sacred safeguards which this country has inherited with the common law from England, ■might be diminished or frittered away. “The trial by jury, as it existed of old, is the trial by jury secured.by our national and state constitutions; it is not granted by these instruments; it is more — it is secured. It is no American invention. Our fathers brought'it with them to this country more than two centuries ago; and, by making it a part of the constitution, they intended to perpetuate it for their posterity; and neither legislatures nor courts have any power to infringe even the least of its privileges.” Stow, C. J., in State v. Cameron, 2 Pin., 490.
The prisoners, who are relators here, were not in the lawful custody of the sheriff of Jefferson county, for want of jurisdiction of the justice of the peace of. that county to issue the warrant on which the arrest was made. The orders of the [554]*554learned circuit judge of Bock county, remanding them, to the custody of the sheriff, are reversed, and the prisoners ordered to be discharged from it.
By the Court. — So ordered.
TayloR, J., dissents.
Oetokt, J., took no part.