Towards the close of the decision Justice Field did make reference to Mrs. Terry’s testimony in the Superior Court.  He said that in the argument some stress had been laid upon the fact that in a State court, where the judge had decided in Mrs. Terry’s favor, the witnesses had been examined in open court, where their bearing could be observed by the judge; while in the federal court the testimony had been taken before an examiner, and the court had not the advantage of hearing and seeing the witnesses.  In reply to this Justice Field called attention to the fact that Judge Sullivan, while rendering his decision in favor of Mrs. Terry, had accused her of having wilfully perjured herself in several instances while testifying in her own case, and of having suborned perjury, and of having knowingly offered in evidence a forged document.  But this reference to Judge Sullivan’s accusations against Mrs. Terry was not reached in the reading of Justice Field’s opinion until nearly an hour after Mrs. Terry had been forcibly removed from the court-room for contempt, and therefore she did not hear it.  This fact appears on record in the contempt proceedings.

But the most extraordinary feature of Mr. Montgomery’s brief is yet to be noticed.  He says that “If the assault so made by Judge Terry was not for the purpose of then and there killing or seriously injuring the party assaulted, but for the purpose of provoking him into a duel, then the killing of the assailant for such an assault was a crime.”

And again he says: 

“I have said that if the purpose of Judge Terry’s assault upon Field was for the purpose of killing him then and there, Neagle, and not Neagle only, but anybody else, would have been justifiable in killing Terry to save the life of Field; but that if Terry’s object in assaulting Field was not then and there to kill or otherwise greatly injure him, but to draw him into a duel, then such an assault was not sufficient to justify the killing.”

He then proceeds to speak of Judge Terry’s duel with Senator Broderick, in which the latter was killed.  He refers to many eminent citizens who have fought duels, although he admits that dueling is a sin.  He then explains that “as a rule the duelist who considers himself wronged by another, having the position and standing of a gentleman, tenders him an insult, either by a slap in the face or otherwise, in order to attract a challenge.  Such undoubtedly was Terry’s purpose in this case.  All of Terry’s threats point precisely to that.”

Here Mr. Montgomery seems to be in accord with Sarah Althea Terry, who, as we have seen, stated that “Judge Terry intended to take out his satisfaction in slaps.”  In the same direction is the declaration of Porter Ashe, when he said: 

    “Instant death is a severe punishment for slapping a man on
    the face.  I have no suspicion that Terry meant to kill Field
    or to do him further harm than to humiliate him.”