THE "SEVEN YEARS WAR"
BETWEEN NEW HAMPSHIRE
AND THE UNITED STATES
A profile of Joel Parker,
Chief Justice of New Hampshire 1838-1847
By Richard B. Treanor
This article was originally published in the New Hampshire Bar
Journal in January 1960, Vo. 2, No 2.
The above headline is a gross exaggeration, but it is a wonderful
eye-catcher to begin an article on the life and times of a New Hamp‑
shire Chief Justice, Joel Parker, who was described by some as being
“dry” and “dull”, and by Justice Oliver Wendell Holmes as “one of the
greatest of American Judges.” l
But there is a fascinating legal problem behind the struggle which
with some truth has been labeled the “Seven Years War.”
It all began when Joseph Story, once, like Parker, a Harvard Law
School professor, and later, unlike Parker, a Justice of the United States
Supreme Court as well, participated in the drafting of the Bankruptcy
Law of 1841, which exempted from bankruptcy “liens . . . valid by
(state law).” The long controversy between Story, who was then a fed‑
eral appellate judge, and Parker, the state chief justice, was ostensibly
concerned with the meaning of a single word in this act, the word
“lien,” but it involved in reality a contest for supremacy between the
state and federal courts, and ultimately, in the eyes of some, between
the state and the nation. Story upheld the authority of his federal court
over the state court in Ex Parte Foster, 5L.R. 55, 2 Story 131 (1842),
when he decided that the word “lien” did not include “attachments”
and enjoined an attaching creditor from interfering with bankruptcy
proceedings.
But Parker took issue with this result in Kitteredge v. Warren,
14 N.H. 509, (1844), and held that an attachment made in good faith
before an act of bankruptcy was a “lien.” The decision was directly
contrary to Story’s position.
The next case in this legal tennis match was In the Matter of Bellows and Peck,3 Story 428, (1844), where Judge Story again affirmed
his opinion and roundly criticized Parker’s.
The ball bounced back to Parker in Kittredge v. Emerson, 15 N.H.
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227, 277 (1844). “There is no principle or pretense of a principle,” he
answered hotly, “of which we are aware, on which we can admit the
right of the circuit or district courts in any manner to interfere and
stop the execution of the final process of the courts of this State.”
The meaning of the word “lien” then became a banner of states’
rights. The Governor of New Hampshire sent a message to the legisla‑
ture, pointing out the conflict between the two courts, and the legis‑
lature responded with a resounding endorsement of state sovereignty
and a highly complimentary tribute to Parker. On December 26, 1844,
the legislature almost unanimously adopted a resolution praising the
action of the New Hampshire Superior Court. 2 Its strong language
gives a clue to the magnitude of the problem in the eyes of the people
of New Hampshire:
“Resolved, that we highly appreciate and heartily approve the firm
and decided stand which has been taken by the judges of our Superior
Court in opposition to the unwarranted and dangerous assumptions
of the Circuit Court of the United States . . . ; and that, in our opinion,
they ought to and will be sustained in that stand, if need be, by the
united voice and power of the government of this State.”
After Story’s death, Parker won game, set and match in Peck v.
Jenness, 48 U.S. 611 (1849), when the United States Supreme Court
affirmed his interpretation of the little word “lien” which had been
the cause of the controversy.
If anything other than vindication for Parker emerged from
this semantic civil war, it is the realization that from ambiguous
words came trouble, and that even today, a hundred years and several
amendments later, the water is often muddy between state and federal
bankruptcy jurisdiction.
The struggle with Story gives a good indication of the character
of Judge Parker; he was contentious, thorough, a fine legal theorist,
and, more often than not, victorious. He was born in Jaffrey in 1795,
and died art the sagacious age of 80 years. During this span he was
successively, lawyer, trial judge, and Chief Justice of the New Hampshire
Supreme Court, and professor at Harvard Law School. He was graduated
from Dartmouth at less than 17 years of age, then studied law with his
brother at Amherst. While practicing law in Keene, he became a state
New Hampshire Bar Journal
Autumn 2011
representative from 1824 to 1826. In January, 1833, he was placed on decided that the court had limited, statutory equity powers. Lund v.
Lund, 1 N.H. 39, 41 (1818). It may safely be concluded then, that
the state’s highest bench, the Superior Court, with a salary of $1,200.
Five years later he was appointed Chief Justice, and held that position Parker resurrected the equity practice, if not the power, which had lain
for ten years, until he resigned and became a professor at Harvard Law dormant since the Revolution. This accomplishment has had lasting
School for 20 years thereafter.3
significance in the history of New Hampshire law.
While in practice, Parker was one of the leading lawyers in the
The leading newspaper in the state, the Patriot, hailed the new
state, He contributed the then-novel procedure of taking down in
act with words of praise: “From imperfections in the old system, or
notes the testimony in full of his opponent’s witnesses, and then
from bad administration, the people had no confidence in the Court of
cross-examining them in detail on
Common Pleas, and every day was
each point, He also interrogated his
weakening that enjoyed by the Su‑
own witnesses, question by question,
perior Court [sic]. The dockets had
instead of letting them give their testi‑
become crowded with old causes
mony in narrative form. This strategy
(some of them eight years old) and
resulted in clarity at the expense of
a prompt administration of justice
brevity, but the custom has endured. 4
was found impracticable under the
Parker is said by many writers
old system. . .”7 “The new Judiciary
5
to have been the author of the act
System, recently adopted in this
for remodeling the courts of the state,
State is likely to exceed in utility
adopted in 1832, which gave full
all that its most sanguine friends
equity powers to the Superior Court.
expected, and its practical results
This was one of the most significant
thus far are of the most satisfactory
contributions in the history of New
kind …”8
Hampshire equity. Before the Revolu‑
A few months after his reputed
tion, the Governor was by statute, also
introduction of the Judiciary Bill,
the Chancellor, and, together with his
Parker was appointed an Associate
council: constituted the high court
Justice of the Superior Court. The
of chancery. Wells v. Pierce, 27 N.H.
Democratic “Patriot” by praising
503, 512 (1853). Federalist Parker in an editorial
After the Revolution, the people
dated January 21, 1833, conferred
of New Hampshire, afraid of the
on him a singular honor, and
power which the royal governor
demonstrated that his reputation
had exercised through the chancery
transcended politics. “Joel Parker,
court, defeated a proposal to add in
Esq., appointed to supply the place
the constitution a provision creating
of Judge Harris, has for some time
a chancery court, with disputed facts The Honorable Joel D. Parker served as Chief Justice of the New maintained the reputation of one
to be determined by a jury.6 The status Hampshire Superior Court, then the state's highest court, from of the finest lawyers in the State.
of equity from that time until Parker’s 1838 to 1848. Portrait courtesy of the Collections of the State His industry and application to his
act in 1832 is not too clear; hence his of New Hampshire.
profession have been untiring and
contribution is difficult to evaluate.
he has obtained a character as a
For instance, Shirley claims that there was no injunctive power until
lawyer, which few men of his age have enjoyed.”
1832. But Justice Bell in Wells v. Pierce, supra page 512, believed This encomium is all the more remarkable because the Patriot’s
that equity always constituted a part of the law of New Hampshire,
editor, Isaac Hill, was then a Democratic Senator, the most powerful
and Justice Snow in Hatch v. Hillsgrove, 83 N.H. 91, (1927), felt that
man in the state, and strongly anti-Federalist, Parker could not have
the injunctive power antedated legislative sanction. Judge Bell in the been appointed without his consent. Although he drove such antiWells case felt that there was no chancery court after the Revolution
Democrats as Webster and Mason out of the state, for Parker he had
until Parker’s act.
only praise. At any rate, it is certain that Parker’s act did not create new equity
Other incidental items in the newspaper of that month of January,
courts; it merely purported to confer jurisdiction on the existing Su‑ 1833, give both a suggestion of the mores of the times and a hint of the
perior Court. Whether the Superior Court would have had this power Civil War which was to engage so much of Parker’s attention. In North
without the act, as Bell apparently believed, is an open question. One Carolina, the senate has passed resolutions denouncing nullification
can say that after the Revolution and before 1832, very few cases in‑ and the ordinance of South Carolina as revolutionary in character . . .
volved what we would call equity jurisdiction. True, at least one case
John C. Calhoun has been elected to the Senate . . . The Massachusetts
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House of Representatives has elected Daniel Webster a Senator by a
vote of 432-46 . . . It is reported that Captain Boone’s company was
attacked by a party of “Comanches” somewhere on the Red River, with
14 killed . . . Advertisement by the Concord Young Men’s Temperance Association: “The use of Ardent Spirits as a drink is not only needless
but hurtful to the social, civil, and religious interest of men.”
During the next 15 years, Judge Parker, (Chief Justice from
1838), dispensed with justice, in the Solomonic sense of the phrase;
510 opinions, contained in volumes six through eighteen of the New
Hampshire Reports, flowed from his pen, His style of writing is still in
vogue today - short, no unnecessary words, clear, logical, with accurate
and copious citations. He differed somewhat from the modern tendency
to decide only the case at bar; he draws many analogies and answers
many hypothetical questions closely related to the issues in the case.
In those days, it was customary for a trial judge to give a long and
rhetorical “charge” to the grand jury. Parker published one of his
charges, a 32-page rouser, “Upon the Importance of Maintaining the
Supremacy of the Laws” (Concord, N.H. 1838). Parker was describing
the incident when abolitionist editor Lovejoy was killed by a pro-slavery
mob. One can almost imagine Parker standing in the Roman forum,
garbed in a toga, as he delivered these Ciceronian phrases to the as‑
sembled jury: “Let us change our position to the ‘far west’. The prison of St. Louis
is broken open by a lawless multitude. An individual, there confined,
is dragged forth and chained to a stake. The faggot is placed, the fire
kindled, amid the screams and groans of the victim are heard the
shouts of the executioners, and he is burned to death, and his ashes
scattered to the four winds of heaven.”
“Do you exclaim that this act, so characteristic of the savage in his
worst estate, must have been perpetrated by some band of marauding
Indians? Oh no! It was the act of inhabitants civilized city.”
If Parker had a facility for the florid figure of speech, he was him‑
self on occasion the object of an emotional essay. One such incident
occurred when Parker charged a jury that they had a right to determine
the facts but not the law. Parker’s political opponent, Senator John
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52 
Parker Hale, was defending a man accused of selling liquor without
a license. When Parker refused to charge that the jury had the right
to determine the constitutionality of the license, Hale published an
essay bitterly denouncing Parker’s view. “If the province of the jury
be as Judge Parker would make it,” he said, “only to sit like senseless
automata and render such a verdict as the court may direct . . . then
surely this inestimable blessing is one that may be as well enjoyed by
the intervention of twelve sheets of foolscap as of twelve good and true
men.”
The question whether the jury should determine questions of law
was, surprisingly, undecided at that time. Parker’s view has, of course,
proven correct.
Many of his opinions concerned issues important only to the liti‑
gants; in keeping with his argumentative nature, he spent four pages,
including a citation to Coke, to decide that the tax collector did not
fatally err in calling the Souhegan Nail, Cotton and Woolen Factory
by the name of the Souhegan Nail, Cotton and Woolen Corporation.
The Souhegan Nail, Cotton and Woolen Factory v. McConihe, 7 N.H.
309 (1834). Other cases illustrate the peculiarities of the times: The defendant
was liable for not paying a toll when he used a toll road to buy lumber,
not at a mill; the statute excepting from toll duty only those going to
or from worship or to buy lumber at a mill. Proprietors of the Second
Turnpike Road v. Taylor 6 N.H. 499, ( 1834).
Other decisions have been cited by many other courts and have
earned for Parker the reputation of being one of New Hampshire’s
greatest judges. The case of The Proprietors of the Piscataqua Bridge
v. The New Hampshire Bridge, 7 N.H. 35, (1934), has been cited 42
times, including five times by the United States Supreme Court. This
was a bill in chancery by a bridge owner to restrain the defendants
from erecting a bridge across the Piscataqua River in the vicinity of
plaintiff’s bridge. A previous legislature had given the plaintiff the
exclusive right to build a bridge in the area, but a new act purported
to give the defendants a similar right. Parker enjoined the defendants,
holding that a later legislature could not deprive the plaintiff of its
rights without compensation. The case involved complex is‑
sues of eminent domain and the
impairment of the obligation of
contracts. It was one of the ear‑
lier of such cases, and the United
States Supreme Court has relied
on it in several decisions.
Parker later distinguished this
case in reaching a decision in
Brewster v. Hough, 10 N.H. 138,
(1839), also cited by the United
States Supreme Court. There he
decided that the legislature had
the authority to tax property of
Dartmouth College, although
that property had previously
New Hampshire Bar Journal
Autumn 2011
been declared exempt by the provincial Assembly and Council. The
distinction between the two cases is the fundamental but sometimes
tenuous one of the power of the sovereign to tax and the lack of au‑
thority to impair the obligation of contracts.
Parker showed his skill as a historian in State v. Rollins, 8 N.H.
550, (1837). The defendant was indicted for kidnapping; the evidence
disclosed that he seized a mulatto child and sent him to another town
for transportation to the south where he was to be sold as a slave. There
was no kidnapping statute in New Hampshire and the defendant argued
unsuccessfully that the common law of kidnapping had never been
adopted. Parker refuted this contention by tracing the history of New
Hampshire law back to the Charter of King James I to the Plymouth
Colony, which, he said, once included New Hampshire. Words in the
Charter provided that the laws should as near as possible be “agreeable
to the laws of England.” The old law of England being binding; and
kidnapping being an offense under that law, the defendant’s plea was
overruled.
But the case for which Parker will longed be remembered is the
famous decision of Britton v. Turner, 6 N.H. 481, (1834). In that case,
the plaintiff had contracted to do a specified job for a year, to be paid
when the work was finished. After working the greater part of a year,
he wrongfully quit and sued to recover for the work he had done. In a
well-reasoned opinion, Parker held that he could recover for quantum
meruit, after deducting the damage caused to his employer by his
wrongful breach. Parker felt that, although there could be no recovery
under the contract – because of the willful breach, the benefit to the
employer created a new theory on which recovery in justice should be
had.
Today it might seem that such a result is merely fair and equitable,
rather than earth-shaking or historic. But in those days, although
Parker drew from analogous precedents, the result was a novel one.
It broke the sanctity of employment contract to reach a result which
avoided hardship but did not allow complete recovery to the contract
breaker.
A glance at the labor codes of the colonial days will give one some
idea of the unorthodoxy of Parker’s decision.
Most of the colonies adopted, in whole or in
part, the Tudor Industrial Code, imported
from England, which sought to assure a
profit to the employer and at the same time
to safeguard the workers against exploitation.
One of the provisions of the code was that no
workman was to depart before the end of his
term, and he was required to produce letters
testimonial to show that he was free to hire
himself out. In those times, when labor was
scarce, such a provision was necessary to as‑
sure an adequate supply of workers, and, so a
premature departure by a worker was deemed
a serious offense. It was in spite of this code
background that Parker reached his result.9
The decision has been cited no less than
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102 times since. It has been criticized for creating a fictitious quasicontract,10 but many writers and courts have praised it: “The reasoning
in this case is strongly persuasive; it is in harmony with the equitable
rules against the enforcement of penalties and forfeitures; and it has
been approved by authors of repute.”11 The question whether Britton
v. Turner is supported in the Restatement of Contracts has been a
matter of hot dispute and the reader is referred to section 557 to decide
for himself.12
In 1848, Parker resigned from the bench to become a professor
at Harvard Law School. At this period, there were only two or three
professors, so that a heavy academic burden fell on his shoulders
at once. At first he was ill at ease in the lecture hall. Admiralty and
shipping, subjects, about which he had little knowledge, were on the
curriculum, and he managed to stay afloat by keeping a page ahead
of the only textbook on the subjects.13
He was known for his thoroughness, his brilliance, his dryness, and
his caution. Catherine Drinker Bowen, in her fascinating biography
of Justice Holmes, “Yankee from Olympus,”14 relates this interesting
description of Holmes’ first encounter, when a student, with Professor
Parker: “Holmes had been warned not to try to understand Parker’s
lectures. Just get what he said into a notebook and then learn it by
heart. Wendell had been scornful of this. He was no undergraduate
trying to skim through college. He was a man of twenty-three who had
been to the wars and desired knowledge.
“But after the first twenty minutes of Joel Parker, Holmes was not
so scornful of his adviser. He could not make sense of one word the
Judge was saying.”
The renowned Joseph Choate found him abstruse to understand.
But Langdell, a fellow New Hampshire man, thought him to be the
center from which “the gladsome light of jurisprudence chiefly mated.”
At times, Parker was not the most popular of lecturers, perhaps
because of his profound manner of thinking. One hot day, when he
came into the classroom for an equity lecture, only fourteen students
were present. As one of the faithful students described Parker’s reac‑
tion, “he turned and smiled benignly upon us, gazing over his gold
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bowed spectacles, and solemnly said, ‘He that endureth to the end
shall be saved.’”15 He must have inspired some affection, though, for
in 1862 his students presented him with a portrait of himself which
still hangs among the honored great in the school lobby. Perhaps one
explanation for the paucity of numbers in class was the fact that the
law school was a collection of study groups which learned as much
from their own members as from the professors themselves.
As the Civil War approached, Parker devoted much of his writing
and many of his lectures to the weighty legal problems in that great
struggle. He contributed to the North American Review two articles, in
1862, in which he denied the right of the president to emancipate the
slaves. Denounced by a group consisting of Senator Sumner and certain clergymen, Parker replied in an oft-quoted address, “To the People of
Massachusetts,” wherein he called Lincoln “not only a monarch, but
. . . his is an absolute, irresponsible, uncontrollable government – a
perfect military despotism.” In particular reply to the clergymen,
he retorted, “If any of them have D.D, attached to their names, that
does not disqualify them from being also A.S.S., and mischief makers
besides.”16
But his loyalty to the Union cause was unquestioned, as can be
seen from this anecdote by Daniel H. Chamberlain, one of his students
and later governor of South Carolina: “One very ardent youth, who was
listening and who had caught the war excitement, suddenly started up
with the question, ‘Professor Parker, if you saw a man striking down
the American flag, and caught him in the act, would you suspend
the habeas corpus?’ and instantly came back the answer of the brave
old man, ‘No sir, I would not suspend the habeas corpus, but I would
suspend the corpus.’ ”
His writings on the Civil War concern such subjects as the right
of secession, habeas corpus and martial law, the case of the Trent,
and the capture of Mason and Slidell. One of his fellow professors has
said that they “deserve a place among the permanent constitutional
literature of the country.”l7
Judge Parker made a significant contribution to the law of mur‑
der when he defined the word “malice” in an article regarding the
celebrated Webster case.18 Dr. Webster was indicted in Massachusetts
for the murder of a prominent Boston professional, Dr. Parkman. The
Chief Judge on appeal held that “the implication of malice arises in
every case of intentional homicide”19
A precise definition of malice was important because it was and
is a dividing line between murder and manslaughter. Judge Parker
in his article felt that such a sweeping statement was not fair to the
defendant. He felt that the mere proof of a voluntary or intentional
killing, much less the mere proof of a killing itself, should not be
sufficient to imply malice. He believed that such a conclusion would
violate the premise that a man is innocent until proven guilty. “Now,
it follows,” he said, “as a logical deduction, that when the law, in
policy, presumes innocence of two things [lack of intention and lack
of malice], it cannot permit the proof of one only, to contradict its own
presumption of innocence as to the other . . .” Rather, Parker felt that
“malice should not be implied, from the mere fact of intentional kill‑
ing, But malice existed if the act was attended with such circumstances
as are the ordinary symptoms of a wicked, depraved, and malignant
spirit, without reference to what was passing in the person’s mind at
the time he committed the act.”
Parker’s views have been accepted by the New Hampshire Supreme
Court in State v. Greenleaf, 71 N.H. 606, 613. There the court, citing
Parker’s article, said that “malice is not an inference of law from the
mere act of killing; but like any other fact in issue, it must be found
by the jury upon competent evidence,”
The New Hampshire Supreme Court has thus rejected the ruling
in this highly publicized and oft-cited case. It is a departure which
seem justified and supported by authorities.20 And there is no doubt
that the change came in large part because of Parker’s influence.
Before Parker died in 1875, he had obtained a stature in his field
which few could equal. His reputation earned him posts at Dartmouth
College, where he taught medical jurisprudence. He was on commis‑
sions for revising statutes in New Hampshire and Massachusetts, and
he was a member of the American Academy of Arts and Sciences.21 His
influence on law and the legal profession been profound.
END NOTES
1
Speeches of Holmes, 35, (1891).
2
At this time, the highest court was known as the Superior Court.
3 C. H. Bell, The Bench and Bar of New Hampshire, p. 86, Houghton Mifflin and Company,
(1894)
4
Joel Parker, American Law Review, January, 1876.
5 Bell, op. cit. supra, note 3 at p, 87; American Law Review, supra, p. 6; Corning, The
Highest Courts of law in New Hampshire, Colonial, Provincial, and State, 2 Green Bag 469,
477 (1890); John Reid, From Common Sense to Common law to Charles Doe; The Evolution
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54 
New Hampshire Bar Journal
Autumn 2011
of Pleading in New Hampshire, p. 33, New Hampshire Bar Journal, Volume 1, No. 3
6
John m. Shirley, Esq. Practice, 5 Granite Monthly 150, 154.
7
New Hampshire Patriot and State Gazette, (Concord, N.H.), January 9, 1833.
8
Ibid., February 18,1833.
9
Joseph G. Rayback, A History of American Labor, 12 (1959).
15 M.F. Dickenson, quoted by Warren, op.cit. supra, note 13, at p. 307. For a New
Hampshire view of the state’s influence on the Harvard Law School, see John Reid, Life at
the Law School when Charles Doe was a Student, 10 Harv. Law School Bull. (#6) 8 (1959)
16 Parker, “Constitutional Law and Unconstitutional Divinity,” Works of Joal Parker, Volume
III, p. 6 (1862). The Works of Parker, in three vloumes, contains most of his publications.
10 C.D. Ashley, Britton v. Turner, 24 Yale Law Journal 544, (May, 1915).
17 Emory Washburn, Memoir of the Hon. Joel Parker, L.L.D.” Press of John Wilson and
Son, (1876).
11 5 Corbin on Contracts, p. 566 (1951).
18 Parker, “The Webster Case,” 72 North American Review, 178 (1851).
12 See Laube, The Defaulting Employee: Britton v. Turner Re-Viewed, 83 U.Pa Law Rev.,
825; Williston, “The Defaulting Employee, A Correction,” 84 U.Pa. Law Rev. 68 (1935).
19 Commonwealth v. Webster, 5 Cush. 295, 305
13 Dictionary of American Biography, Scribner’s, (1934), p. 230, Charles Warren, History
of the Harvard Law School, vol. II, Lewis Publishing Company, N.Y., (1908).
21 Washburn, op. cit. supra, note 17, at 511
20 See 2. Bishop, 9th Edition, Criminal Law, p. 511.
14 Little, Brown and Company, Boston (1945), at p. 204.
About the Author
Richard B. Treanor is in solo practice in Washington, D.C.,
handling probate and federal taxation. Admitted to the New
Hampshire Bar in 1957, he served as a law clerk to United
States District Court Judge Aloysius J. Connor for several
years before leaving the state to enter private practice in
Washington, D.C.
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