MORROW, Circuit Judge
(after stating the facts as above). [1] It is alleged by the plaintiff in error that the District Court erred in rendering judgment against him for the reason that that court was without jurisdiction to summarily punish for contempt.
Section 725 of the Revised Statutes (U. S. Comp. St. 1901, p. 583), from which the power of the federal courts in matters of contempt is derived, reads as follows; ■ ,
“The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, that such power to punish con-tempts shall not be construed to extend to any cases except the 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 courts in their official transactions, and the disobedience or resistance by 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.”
In Ex parte Robinson, 86 U. S. (19 Wall.) 505, 510 (22 L. Ed. 205), Mr. Justice Field, referring to the power of the federal courts to punish for contempt, and construing section 725 of the Revised Statutes, said:
. “The- power, to punish for contempts is inherent in all courts; its exist-' ence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power. But the power has been limited and defined by the act of Congress of March 2, 1831. The act, in terms, applies to all courts; whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the Constitution, may perhaps be a matter of doubt. But that it applies to the Cir-[629]*629«lit and District Courts there can he no question. These courts were created bv act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the cases in which summary punishment for contempts may be indicted. It limits the power of these courts in this respect to three classes of cases: (1) Where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; (2) where there has been misbehavior of any officer of the courts in his official transactions; and (3) where there has been disobedience or resistance by any officer, parly, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the courts. As thus seen the power of these courts in the punishments of contempts can only be exercised to insure order and decorum in their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judgments, and processes.”
In Ex parte Terry, 128 U. S. 289, 302, 9 Sup. Ct. 77, 79 (32 L. Ed. 405). the petitioner had been adjudged guilty of contempt by the ETiited States Circuit Court for the Northern District of California. Mr. Justice Harlan, delivering the opinion of the court, said:
“Nor can there be any dispute as to the power of a Circuit Court of the United States to punish contempts of Its authority. In United States v. Hudson, 7 Cranch, 32 [3 L. Ed. 259], it was held that the courts of the United States, from the very nature of their institution, possess the power to fine for contempt, imprison for contumacy, enforce the observance of order, etc. In Anderson v. Dunn, 6 Wheat. 204, 227 [5 L. Ed. 242], it was said that ‘courts of justice are universally acknowledged to be vested, by their very creation, with jtower to impose silence, respect, and decorum in their presence, and submission to their lawful mandates.’ So, in Ex parte Robinson, 19 Wall, 505, 510 [22 L. Ed. 205]: ‘The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.’ Ex parte Bollman. 4 Cranch. 75, 94 [2 L. Ed. 554]; Story, Constitution, § 1774. * * * But this power, so far as the Circuit Courts of the United States are concerned, is not simply incidental to their general power to exercise judicial functions; it is expressly recognized, and the cases in which it may he exercised are defined, by acts of Congress. They have power, by statute, ‘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 he construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice. * x * >»
[2] But the plaintiff in error insists that the words spoken were not contemptuous under any reasonable construction. With this we can - not agree. In addressing to the jury the abusive and disrespectful language set forth above, the plaintiff in error, in our opinion, committed a grave breach of the duty and obligation of an attorney to maintain the respect due to courts of justice and judicial officers. Had his statements been addressed to the court, the fact that they were contemptuous could not be seriously questioned. And the fact that they were addressed to the jury does not lessen their objectionable character. In jury trials, the jury is part of the court, so far as the attitude of counsel towards it is concerned, and it is entitled to the same [630]*630respect, consideration, and protection to which the court itself is entitled.
In the case of Breen, 30 Nev. 164, 176, 93 Pac. 997, 1000, the court said:
“To attempt to declare any fixed rule marking tile boundaries where free speech in reference to court proceedings shall.end would he as dangerous as it would be difficult. The right of free speech is one of the greatest guaranties to liberty in a free country like this, eren though that right ■ is frequently and in many instances outrageously abused. And scarcely less, if not of equal, importance, is the maintenance of respect for judicial tribunals, which are the arbiters of questions involving the lives, liberties, and property of the people. The duty and power is imposed upon the courts to protect their good name against ill-founded and unwarranted attack, the effect of which would be to bring the court unjustly into public contempt and ridicule, and thus impair the respect due to its authority. While it is the duty of all to protect the courts against unwarranted attack, that duty and obligation rests especially upon the members of the bar and other officers of the court. * * * It is the duty of all attorneys to be honest and honorable, to conduct themselves-as gentlemen, and to show due respect and courtesy.
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MORROW, Circuit Judge
(after stating the facts as above). [1] It is alleged by the plaintiff in error that the District Court erred in rendering judgment against him for the reason that that court was without jurisdiction to summarily punish for contempt.
Section 725 of the Revised Statutes (U. S. Comp. St. 1901, p. 583), from which the power of the federal courts in matters of contempt is derived, reads as follows; ■ ,
“The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, that such power to punish con-tempts shall not be construed to extend to any cases except the 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 courts in their official transactions, and the disobedience or resistance by 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.”
In Ex parte Robinson, 86 U. S. (19 Wall.) 505, 510 (22 L. Ed. 205), Mr. Justice Field, referring to the power of the federal courts to punish for contempt, and construing section 725 of the Revised Statutes, said:
. “The- power, to punish for contempts is inherent in all courts; its exist-' ence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power. But the power has been limited and defined by the act of Congress of March 2, 1831. The act, in terms, applies to all courts; whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the Constitution, may perhaps be a matter of doubt. But that it applies to the Cir-[629]*629«lit and District Courts there can he no question. These courts were created bv act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the cases in which summary punishment for contempts may be indicted. It limits the power of these courts in this respect to three classes of cases: (1) Where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; (2) where there has been misbehavior of any officer of the courts in his official transactions; and (3) where there has been disobedience or resistance by any officer, parly, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the courts. As thus seen the power of these courts in the punishments of contempts can only be exercised to insure order and decorum in their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judgments, and processes.”
In Ex parte Terry, 128 U. S. 289, 302, 9 Sup. Ct. 77, 79 (32 L. Ed. 405). the petitioner had been adjudged guilty of contempt by the ETiited States Circuit Court for the Northern District of California. Mr. Justice Harlan, delivering the opinion of the court, said:
“Nor can there be any dispute as to the power of a Circuit Court of the United States to punish contempts of Its authority. In United States v. Hudson, 7 Cranch, 32 [3 L. Ed. 259], it was held that the courts of the United States, from the very nature of their institution, possess the power to fine for contempt, imprison for contumacy, enforce the observance of order, etc. In Anderson v. Dunn, 6 Wheat. 204, 227 [5 L. Ed. 242], it was said that ‘courts of justice are universally acknowledged to be vested, by their very creation, with jtower to impose silence, respect, and decorum in their presence, and submission to their lawful mandates.’ So, in Ex parte Robinson, 19 Wall, 505, 510 [22 L. Ed. 205]: ‘The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.’ Ex parte Bollman. 4 Cranch. 75, 94 [2 L. Ed. 554]; Story, Constitution, § 1774. * * * But this power, so far as the Circuit Courts of the United States are concerned, is not simply incidental to their general power to exercise judicial functions; it is expressly recognized, and the cases in which it may he exercised are defined, by acts of Congress. They have power, by statute, ‘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 he construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice. * x * >»
[2] But the plaintiff in error insists that the words spoken were not contemptuous under any reasonable construction. With this we can - not agree. In addressing to the jury the abusive and disrespectful language set forth above, the plaintiff in error, in our opinion, committed a grave breach of the duty and obligation of an attorney to maintain the respect due to courts of justice and judicial officers. Had his statements been addressed to the court, the fact that they were contemptuous could not be seriously questioned. And the fact that they were addressed to the jury does not lessen their objectionable character. In jury trials, the jury is part of the court, so far as the attitude of counsel towards it is concerned, and it is entitled to the same [630]*630respect, consideration, and protection to which the court itself is entitled.
In the case of Breen, 30 Nev. 164, 176, 93 Pac. 997, 1000, the court said:
“To attempt to declare any fixed rule marking tile boundaries where free speech in reference to court proceedings shall.end would he as dangerous as it would be difficult. The right of free speech is one of the greatest guaranties to liberty in a free country like this, eren though that right ■ is frequently and in many instances outrageously abused. And scarcely less, if not of equal, importance, is the maintenance of respect for judicial tribunals, which are the arbiters of questions involving the lives, liberties, and property of the people. The duty and power is imposed upon the courts to protect their good name against ill-founded and unwarranted attack, the effect of which would be to bring the court unjustly into public contempt and ridicule, and thus impair the respect due to its authority. While it is the duty of all to protect the courts against unwarranted attack, that duty and obligation rests especially upon the members of the bar and other officers of the court. * * * It is the duty of all attorneys to be honest and honorable, to conduct themselves-as gentlemen, and to show due respect and courtesy. * * * When they fail -in any of these respects it is essential to the proper maintenance of the respect and dignity due to the court, and to the, proper administration of justice, that they be brought to a realization of their duties by reprimand, suspension, or disbarment, and sometimes by line and imprisonment.”
In the case before us we think that the statements made by the plaintiff in error were unwarranted reflections upon the honor and integrity of the jury whom he was addressing, and that in making them he was guilty of a grave breach of professional propriety. He had no right to assume that the case in which he was engaged would not receive at the hands of the jurymen the unbiased and unprejudiced consideration and deliberation which it merited. Nor did he have the right to assume that the jury would not return a verdict against the defendant mining company, if in their judgment the facts warranted it.
[3] The plaintiff in error also avers that the court below erred in not giving him an opportunity to defend himself by way of preparing a defense or offering evidence, and that the court had no jurisdiction to punish for contempt without filing written charges or giving notice, or without a citation.
With respect to this contention it must be remembered that at the time the plaintiff in error was called before the court, and before judgment was passed upon him, he was permitted to speak in his own behalf, and that he at that time addressed the court at some length.
In the case of Terry, supra, the petitioner alleged that the Circuit-Court was without jurisdiction to make the order committing him to jail for the reasons that it was made without his having had any previous nQtice of the intention of the court to take any steps whatever in relation to the matters referred to in the order, and that it was made without giving him an opportunity of being first heard in defense of the charges therein made against him. Concerning these allegations, Mr. Justice Harlan said:
“These grounds may be dismissed as immaterial in any inquiry this court is at liberty, upon this original application, to make. For, upon the facts recited in the order of September 3d, showing a clear case of contemi>t committed in the face of the Circuit Court, which tended to destroy its authority, [631]*631and, by violent methods, to embarrass and. obstruct Its business, the petitioner was not entitled, of absolute right, either to a regular trial of the question of contempt, or to notice by rule of the court’s intention to proceed against him, or an opportunity to make formal answer to tlie charges contained in the order of commitment, it is undoubtedly a general rule in all actions, whether prosecuted by private parties, or by tlie government — that is, in civil and criminal cases — Unit ‘a sentence of a court pronounced against; a party without hearing him. or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.’ Windsor v. McVeigh, 93 U. S. 274, 277 [23 L. Ed. 9141. lint there is another rule, of almost immemorial antiquity, and universally acknowledged, which is equally vital to personal liberty, and to the preservation of organized society, because upon its recognition and enforcement; depend the existence and authority of the tribunals established to protect the rights of the citizens, whether of life, liberty, or property, and whether assailed by tbe illegal acts of the government or by the lawlessness or violence of the individuals. It; has relation to the class of contempts which, being committed in the face of the court, imply a purpose to destroy or impair its authority, to obstruct the transaction of its business, or to insult or intimidate those charged with the duty of administering the law. Blackstone thus states the rule: ‘If the contempt he committed in the face of tlie court, the offender may he instantly apprehended and imprisoned, at the discretion of tlie judge, without any further proof or examination.’ * * «
“it results from what has been said that it was competent for .the Circuit Court, immediately upon the commission, in its presence, of the contempt ro.ciied in the order of September 3d, to proceed upon its own knowledge of tbe facts, and punish the offender, without further proof, and without issue or trial in any form. It was not bound to hear any explanation of his motives. if it was satisfied, and we must conclusively presume, from the record before us, that it was satisfied, from what occurred under its own eye and within its hearing, that the ends of justice demanded immediate action, and that no explanation could mitigate his offense or disprove the fact that; he liad committed such contempt of its authority and dignity as deserved instant; punishment. Whether the facts justified such punishment was*for that court to determine under its solemn responsibility to do justice, and to maintain its own dignity and authority.”
[4] We cannot agree with the contention of the plaintiff in error that the court helow erred in waiting until the next day before proceeding to pass judgment upon him.
In the case of Terry, supra, the petitioner, after committing the offense, left the courtroom, and at a subsequent time of the same day the Circuit Court made the order adjudging him guilty of contempt of court. Concerning this question the court said:
“The precise question, therefore, to be now determined, is whether tlie roti’Tmcnt of the petitioner from the courrroom, into another room of the same budding, after he had been guilty of misbehavior in tlie presence of the court, and laid violently obstructed the execution of its lawful order, defeated tlie jurisdiction which it possessed, at the moment the contempt was committed, to order his immediate imprisonment without other proof than that supplied by its actual knowledge and view of file facts, and without examination or trial in any form. In our judgment this question must, be answered in the negative. Jurisdiction of the pox-son of the petitioner attached instantly upon t he contempt being committed in tlie presence of tlie court. That jurisdiction ivas neither surrendered nor lost by delay on the part of the Circuit Court in exercising its powers to proceed, without notice and proof, and upon its view of what occurred, to immediate punishment. * * *
“It was within the discretion of that court, whose dignity he had insulted, and whose authority he had openly defied, to determine whether it should, upon its own view of what occurred, proceed at once to punish him, or postpone action until he was arrested upon process, brought back into its presence, and permitted to make defense. Any abuse of that discretion would be at [632]*632most an Irregularity or error, not affecting the jurisdiction of the Circuit Court.”
We are of opinion that the rule laid down in the case of Terry is entirely applicable to the case before this court. Obviously there can be no distinction between delaying until later in the same day, and delaying until the next day, before making an order adjudging an offender guilty of contempt of court; jurisdiction of the person of the offender having attached instantly upon the contempt being committed in the presence of the court.
[5] The plaintiff in error contends further that the punishment imposed upon him was excessive, unusual, and cruel. The judgment of the court was that the plaintiff in error “pay a fine of $500 and be remanded into the custody of the United States marshal for the district of Montana until such fine is paid.” In the absence of a statute limiting the amount of a fine or the duration of imprisonment, the punishment is within the sound discretion of the court, having in view the ability of the offender to comply with the judgment of the court as to the amount of the fine. The only ground upon which an appellate court can review such a judgment, and hold it to be an abuse of sound discretion, would be a showing that the fine was excessive and out of proportion to the offense, or that it was beyond .the ability of the offender to pay the fine or secure his discharge from imprisonment by taking the poor debtor’s oath, and that -the imprisonment as an alternative would therefore be indefinite. No such showings having been made in this case, there is no ground for setting aside the judgment or for its revision.
The judgment and order of the court below are therefore affirmed.