make a wager of five hundred dollars that some of the "surface claimants" would so influence the court that it would reverse its former decision without having strong grounds for believing it was true. He intended, by sending the telegram to the Independent, and publishing it in the city where the court was then sitting, to reach the court. He says himself, in his affidavit, that his purpose was to apprise the court of what had transpired, that it might act in the premises as it saw proper. He fabricated a falsehood, attributed it to other parties, and published it, to apprise the court of what had transpired, to influence its decision in the suits then pending before it in which he was a party. He hoped, by informing the judges that it was believed that the defendants to the suits in which he was plaintiff were bringing influence to bear upon them so that they would reverse their former decision, to make them feel that they could not afford to do so, lest it would be said of them by the public that they had been induced by corruption to make such decision. His purpose to reach each one of the judges, and to influence him to stand firm in his former holding, is as obvious as if he had sent the dispatch to each of them personally, instead of publishing it in a newspaper, where he knew they were bound to read it. If the telegram had been true, he might have been excused upon the ground of an honest motive. But what could have induced him to manufacture a falsehood, and send it, but a corrupt motive to influence the court? Must a court that sits to try causes be insulted by the very parties to the suits which they are trying, by a covert and cowardly insinuation of official corruption, and have no power to punish such parties for contempt? To deprive them of such power is to take away from them the right of judicial self-defense. There can be no doubt but that his conduct is a contempt of court at common law.

Mr. Bishop, in his work on criminal law, volume 2, section 245, says: "And according to the general doctrine, any publication, whether by parties or strangers, relating to a cause in court, if it has a tendency to prejudice the public respecting its merits, and to corrupt the administration of justice, . . . . may be visited as a contempt." In 2 Hawk, P. C. 220, contempts are classified as contempts in the face of the court, and comtemptuous words or writings concerning the court. Blackstone says contempts may be committed "by speaking or writing contemptuously of the court, or judges acting in their judicial capacity, . . . . and by anything, in short, that demonstrates a gross want of that regard and respect which, when once courts of justice are deprived of, their authority is entirely lost among the people." 4 Cooley's Bla. Com. 285. The supreme court of Illinois has defined contempts to be "direct," such as are offered in the presence of the court while sitting judicially, or "constructive," such, though not in its presence, as tend by their operation to obstruct and embarrass or prevent the due administration of justice. Stuart v. People, 3 Scam. 395. And in this case the court held that such acts would be considered as done in its presence. Courts are organized for the administration of justice, and the whole doctrine of contempt grows out of the necessity of removing every obstruction in its way, by visiting summary punishment upon those who undertake to defeat it. The right to punish for contempt is inherent in all courts of justice. It is a part of their very life, and a necessary incident to the exercise of judicial power. United States v. New Bedford Bridge, 1 Wood. & M. 407; State v. Johnson, 1 Brev. 155; Yates v. Lansing, 9 Johns. 416; Casat v. State, 40 Ark. 514; United States v. Hudson, 7 Cranch, 32; State v. Doty, 90 Am. Dec. 674.

In the case of Stuart v. People, 3 Scam. 395, the supreme court of Illinois say that "in the class of con

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structive contempts would necessarily be included all acts calculated to impede, embarrass, or obstruct the court in the administration of justice." Such acts would be considered as done in the presence of the court. Contempts committed out of the court's presence are often held to have been constructively committed in its presence. It makes no difference whether the defendant was in Butte or Helena, in the court-house in the presence of the court, or out of it, when he published the obnoxious dispatch, the authority to punish for it is equally clear at common law. Upon the right to punish for constructive contempts in England and America, see Respublica v. Passmore, 3 Yeates, 441; Respublica v. Oswald, 1 Dall. 319; Masters v. Edwards, 1 Caines, 515; Tenney's Case, 3 Fost. 162. In the case of Neel v. State, 50 Am. Dec. 209, the court say: "This power extends at common law, not only to acts which directly and openly insult or resist the power of the court, or the purposes of the judges, but to consequential, indirect, and constructive contempts, which obstruct the process, degrade the authority, or contaminate the purity of the court."

But we are met at the threshold of this discussion with the contention that this court has no power to punish for this contempt, for want of jurisdiction. This objection is founded upon the idea that the act of Congress of March 2, 1831, carried into the Revised Statutes, section 725, applies to this court. Said statute provides that the United States courts "shall have power .. to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority; provided, that such power to punish contempts shall not be construed to extend to any cases, except to misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said court in their official transactions, and the disobedience or resistance of any such

officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts." The contempt under consideration does not come within the classes enumerated in the statute just quoted; hence if this court is a United States court, within the meaning of this statute, it has no jurisdiction to punish the defendant for said contempt. We do not think this statute embraces the territorial court. It applies to the courts of the United States alone. In the case of Clinton v. Englebrecht, 13 Wall. 447, the supreme court of the United States say: "The judges of the supreme court of the territory are appointed by the President, under the act of Congress; but this does not make the courts they are authorized to hold courts of the United States. This was decided long since in Insurance Co. v. Canter, 1 Pet. 546, and in the later case of Benner v. Porter, 9 How. 235. There is nothing in the constitution which would prevent Congress from conferring the jurisdiction which they exercise, if the judges were elected by the people of the territory and commissioned by the governor. They might be clothed with the same authority to decide all cases arising under the constitution and laws of the United States, subject to the same revision. Indeed, it can hardly be supposed that the earliest territorial courts did not decide such questions, although there was no express provision to that effect, as we have already seen, until a comparatively recent period. There is no supreme court of the United States, in the sense of the constitution, in the territory of Utah. The judges are not appointed for the same terms, nor is the jurisdiction which they exercise part of the judicial power conferred by the constitution or the general government. The courts are the legislative courts of the territory, created in virtue of the clause which authorizes Congress to make all needful rules and regulations re

specting the territories belonging to the United States." This case arose in the territory of Utah, upon the question whether a jury had been obtained in a lawful manner. The district judge had them summoned under an act of Congress prescribing the manner in which the United States courts should be governed in the selection of jurors. The district judge acted upon the theory that supreme and district courts of the territories were courts of the United States, and summoned the jury by an open venire, as required by said act of Congress. This the supreme court of the United States held to be error, for the reasons given in the extract from the opinion given above. We think it clear that Congress never intended to embrace the territorial .courts in the act of March 2, 1831, above quoted. United States v. Beebe, 2 Dak. 298.

But we are met with the further objection that said statute regarding contempts is in force in this territory, under that provision of the organic act which declares "that the constitution and laws of the United States which are not locally inapplicable shall have the same force and effect within the said territory of Montana as elsewhere in the United States," and it may be insisted that, under this clause, the act of March 2, 1831, is applicable to the territorial courts. In the case of Hornbuckle v. Toombs, 18 Wall. 654, the supreme court of the United States say that "it is argued, by virtue of this enactment, all regulations respecting judicial proceedings which are contained in any of the acts of Congress are imported into the practice of the territorial courts. This proposition is not tenable. . . . . That clause has the effect, undoubtedly, of importing into the territory the laws passed by Congress to prevent and punish offenses against the revenue, the mail service, and other laws of a general character and universal application, but not those of specific application. The act of March