hawkers and peddlers and pedlars and pennsylvania

I am reading a fascinating work by Harvard Business School historian Walter Friedman entitled Birth of a Salesman: The Transformation of American Selling (Harvard, 2004). I have read the first two chapters only, and though the second chapter is full of historical errors which ought to have embarrassed HUP (I will note them elsewhere), its perspective is refreshing and even entertaining. Friedman shows how salesmanship in America developed from an unorganized practice of individuals peddling wares in the 19th century to a highly systematized, centralized and disciplined approach to moving one's products by the 1920s. The purpose of this and the next few essays is to talk about a few legal cases to which Friedman points but which he inadequately addresses in his background chapter (pp. 14-33).

Hawkers and Peddlers in Pennsylvania

One way that the states dealt with itinerant sellers was to pass legislation requiring each such peddlar to have a license to sell. If he didn't have such a license, he could be fined a hefty amount (up to $50 in the PA statute).* Note that such a statute was not a

[*This is different from the NY statute quoted in this essay, in which jugglers and mountebanks were prohibited from promoting any products whatsoever.]

"consumer protection" law. It was a regulatory law, protecting local businessmen from the competition of itinerants. The only thing that Friedman says about this PA statute is the following:

"Pennsylvania passed a law requiring 'peddlers' selling goods of 'foreign' (that is, out of state) manufacture to carry a license,'" (p. 27).

If we dig a little deeper into the statute, which he doesn't cite and which his parenthetical clause misinterprets, we will discover an interesting vignette about 19th century law. Let's do so.

The PA Statute

In order to deal with the problem of itinerant peddlers, PA first passed a regulatory statute in 1830 and then amended the statute in 1840. I will refer to two cases construing the statute, one from 1850 and one from 1869.* At issue in the first case, Fisher

[*Friedman refers only to the latter case, Hart v. Willets, 62 Pa 15 (1869), and I am grateful to him for his citation, but he cites it, in parentheses, as (189 Pa LEXIS 205). The citation should be 1869 Pa LEXIS 205, but I question even the need for that kind of citation since almost no one has access to that LEXIS data base, and the case reporter is easy to find in any law library.]

v. Patterson, 13 Pa 336 (1850) was whether a canal-boat docked in a harbor selling various kinds of Asian tea and other wares, fell under the regulatory language of the statute. The case doesn't completely quote the 1840 version of the statute, but what it gives is as follows. The law required a license for those:

"who shall be found hawking, peddling or travelling from place to place, through any part of this state, to sell, or expose for sale any foreign goods, wares or merchandise, every person so offending against this act shall be liable to a fine of $50."

The justice of the peace had fined Patterson, the owner of the canal-boat which had shelves "fitted up" for retailing, $50 for violating the statute. The Court of Common Pleas, however, reversed the fine because it held that setting up such a canal-boat was neither "hawking" or "peddling." The former, it concluded, was selling goods by "outcry in the streets" while a peddler is "one who carries about small commodoties for sale on his back, or in a wagon or cart." Because the statute was characterized by the lower court as a "penal" statute, it had to be construed narrowly. Thus, because of these dictionary definitions, the fine had to be reversed. Patterson was neither a peddler or hawker according to these definitions.

The PA Supreme Court Speaks

The case was appealed to the PA Supreme Court. The first sentence of the court's opinion leaves us no doubt as to how it was going to rule.

"The act of assembly, under which suit is brought, being part of the revised system of the commonwealth, is entitled to a fair and liberal construction, and ought not to be frittered away by nice and fanciful distinctions."

Does the defendant come within the description of a "hawker, pedlar or petty chapman....?" The addition of the word "petty chapman" is suprising here, and I wish I had copies of the 1840 or 1830 PA statutes to determine if that phrase appeared in the law, because a chapman is simply a person who is a merchant. In any case, the court decided that the Court of Common Pleas was lexicographically challenged by citing only the popular meaning of the terms, instead of the way those terms are defined in a legal dictionary. Thus, in addition to giving the statute a broad construction (rather than a narrow one, as Common Pleas would have desired), the Supreme Court sought out a legal rather than common dictionary. It makes law appear to be quite a subjective undertaking, doesn't it? Well, let's leave that aside for the moment. What does the legal dictionary say about hawkers, etc? Hawkers were "of old, so called, and the appellation seems to grow from their uncertain wandering, like persons that, with hawks, seek their game where they can find it." The legal dictionaries go on to define hawkers, pedlars and petty chapmen as persons

"travelling from town to town, with goods and merchandise. The manner of travelling, whether on foot or horseback, in wagons, carts, sleighs or canal-boats, does not enter into the definitions."

Bingo. The court finds that the legal dictionaries didn't emphasize the mode of traveling but rather the type of selling. Hawkers and peddlers are those who sell from place to place regardless of the vehicle. That the state law required them to have a license for each county in which they sold was not punitive or unfair.

Conclusion

Thus, sales from a canal-boat fell under the statutory license requirement. But the court didn't interpret the phrase "foreign" here, but the next case will do so. Let's turn now to that.

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