2011 Fall, Pg. 50. THE "SEVEN YEARS WAR" BETWEEN NEW HAMPSHIRE AND THE UNITED STATES.

• Author: By Richard B. Treanor

New Hampshire Bar Journal

2011.

2011 Fall, Pg. 50.

THE "SEVEN YEARS WAR" BETWEEN NEW HAMPSHIRE AND THE UNITED STATES

New Hampshire State Bar JournalVolume 52, No. 3Fall 2011THE "SEVEN YEARS WAR" BETWEEN NEW HAMPSHIRE AND THE UNITED STATES A profile of Joel Parker, Chief Justice of New Hampshire 1838-1847By Richard B. TreanorThis 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 Hampshire 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."(fn1)

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 federal 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 inEx 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, Story 428, (1844), where Judge Story again affrmed his opinion and roundly criticized Parker's.

The ball bounced back to Parker in Kittredge v. Emerson, 15 N.H. 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 fnal 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 legislature, pointing out the confict between the two courts, and the legislature 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.(fn2) 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 frm 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 affrmed 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 fne 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 representative from 1824 to 1826. In January, 1833, he was placed on 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 for ten years, until he resigned and became a professor at Harvard Law School for 20 years thereafter(fn3)

While in practice, Parker was one of the leading lawyers in the state. He contributed the then-novel procedure of taking down in notes the testimony in full of his opponent's witnesses, and then cross-examining them in detail on each point. He also interrogated his own witnesses, question by question, instead of letting them give their testimony in narrative form. This strategy resulted in clarity at the expense of brevity but the custom has endured.(fn4)

Parker is said by many writers(fn5) to have been the author of the act for remodeling the courts of the state, adopted in 1832, which gave full equity powers to the Superior Court. This was one of the most significant contributions in the history of New Hampshire equity. Before the Revolution, the Governor was by statute, also the Chancellor, and, together with his council: constituted the high court of chancery. Wells v. Pierce, 27 N.H. 503,512 (1853).

After the Revolution, the people of New Hampshire, afraid of the power...