Definition
Use of word refers to the interpretive principle governing how courts and legislators determine the meaning of a term appearing in a statute, contract, constitution, or other legal instrument. The core question is: what meaning did the drafter intend, and how does that meaning interact with the word's established public, judicial, or technical sense at the time of drafting?
The principle operates primarily in two contexts:
1. Statutory interpretation: When a legislature uses a word without expressly defining it, courts presume the word carries its well-understood public and judicial meaning — the ordinary sense familiar to the community and to courts at the time of enactment. This presumption resists importing meanings from foreign legislatures or other legal systems unless context demands it.
2. Common-law actionability: At common law, certain words were classified as "actionable per se" — meaning their mere utterance could support a legal cause of action without proof of special damages. Words that imputed a felony fell into this category. This classification shaped defamation doctrine for centuries and remains relevant in jurisdictions that preserve per se categories.
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Common Confusion
"Use of word" as a legal term of art is easily overlooked because it sounds like a grammatical or rhetorical concept rather than a discrete legal principle. Researchers may conflate it with general rules of statutory construction (such as the plain meaning rule or the rule of lenity) when it is more precisely the foundational presumption beneath those rules — the baseline from which textual analysis proceeds. Separately, the common-law concept of "actionable words per se" is sometimes confused with modern defamation per se, which has a somewhat different scope depending on jurisdiction.
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Why It Matters in Research
This is a structural interpretive principle, not a cause of action or a defense, which means it appears diffusely across judicial opinions rather than in dedicated doctrinal sections. Researchers must know where to look.
For statutory interpretation research: The presumption that Congress uses words in their well-understood public and judicial sense was articulated by the U.S. Supreme Court and shapes how federal courts approach undefined statutory terms. When researching federal legislation, the absence of a statutory definition is not the end of the inquiry — it triggers this presumption. Researchers working in historical sources should be alert to the fact that the "well-understood" meaning of a word in 1890 may differ substantially from its meaning today, and courts interpreting older statutes are supposed to apply the period-appropriate meaning.
For defamation and tort research: The "actionable words per se" doctrine is embedded in older common-law sources and may not be clearly labeled in historical digests. Researchers tracing defamation doctrine through 19th-century materials should look for this category explicitly, as it predates the modern per se/per quod framework and controls the analytical structure of the earlier cases. Kentucky and other states developed their own formulations; do not assume uniform application across jurisdictions.
For constitutional research: The use-of-word principle intersects with First Amendment doctrine wherever courts must determine whether specific words or categories of expression fall inside or outside constitutional protection. The "fighting words" doctrine, true threats analysis, and hostile audience cases all turn in part on what words mean and whether their use — in context — crosses a legal threshold. The distinction between the communicative content of words and their actionable use is a persistent analytical problem.
Corpus trap: Bouvier's entries on this subject are brief and illustrative rather than comprehensive. The 216 U.S. 439 reference anchors the federal interpretive presumption, but Bouvier does not develop the doctrine fully. Researchers relying solely on Bouvier may underestimate how extensively this principle has been elaborated in later case law.
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Historical Dictionary Support
Bouvier's Law Dictionary addresses use of word in two distinct registers. First, it states the federal interpretive presumption: where Congress has not expressly defined a term, the word is presumed to carry its well-understood public and judicial meaning, and analogies drawn from parliamentary declarations of meaning are not controlling in U.S. federal interpretation. This reflects the separation between American and English legal sources that became increasingly important in post-Civil War federal jurisprudence.
Second, Bouvier flags the common-law category of "actionable words per se" — words that imported a felony at common law and were therefore actionable without proof of special damages, citing Kentucky authority. This entry cross-references the broader ACTIONABLE entry, signaling that use of word in the defamation context is a subordinate doctrine within a larger framework.
What Bouvier does not address: the interpretive principle as applied to constitutional text, the interplay with the rule of lenity in criminal statutes, or the evolution of the per se category in modern defamation law. These gaps are significant for any researcher who uses Bouvier as a starting point rather than a terminus.
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Jurisdictional Note
The presumption that legislatures use words in their well-understood public and judicial sense applies in federal courts and in most state courts, but state courts vary in how they weight legislative history, dictionary definitions, and prior judicial usage when the presumption is contested. The "actionable words per se" doctrine survives in some jurisdictions in modified form; others have absorbed it into general defamation per se analysis or abolished per se categories by statute.
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Encyclopedia Cross-Reference
The Law Mind Constitutional Law Encyclopedia: Fighting Words, True Threats, and Hostile Audience
The Law Mind Property Law Encyclopedia: Zoning — Special Use Permits and Conditional Use Permits
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