CHAPTER II.

HOW ONE MAY AFFECT ANOTHER BY LANGUAGE.

Language can have no effect unless published-It must be true or false, commendatory or discommendatory— Must concern a person or thing—Its effect, direct or indirect, or both-Reputation.

§ 23. Language may exist as mere thought, but before it can have any effect ultra the individual with or in whom it originated, it must be expressed; it must come into existence as an expression, by sound as in speech, or by sign as in writing or effigy; and not only must it be expressed, it must also be published—that is, communicated by the individual with or in whom it originated to some other.

24. Language when employed to communicate ideas must assume the form of a proposition, or a series of propositions; by a proposition being meant, “discourse which affirms or denies something of some person or thing, the subject of the proposition." Every proposition is an assertion, and must be either true or falsethat is, it must assert of its subject that which is true, or that which is false, and the assertion may be either of commendation or discommendation.

25. Language must concern either a person or a thing, or both, and it may concern a person in his individual and natural capacity merely, or in some acquired or artificial relation or capacity as a trader, an officeholder, or as the author, owner, or possessor of some certain thing.

§ 26. The effect of the publication of language upon a person, other than the author or publisher of the language, must be direct or indirect, or both.

§ 27. Language cannot directly affect a thing; whatever direct effect it can have must be upon a person.

§ 28. Language, whether it concerns a person or a thing, may have a direct effect upon the person to whom it is published, but upon none other. It may directly affect the feelings, health, belief, or opinion of him to whom it is published, and it may influence or excite him towards a particular course of action or forbearance by himself, or in respect of himself or his affairs, or in respect of some other person or some thing, or the affairs of some other person. It may either please or displease him, or cause him to feel pleased or displeased with some other person or thing, or cause him to do some act or to abstain or resolve to abstain from doing some act to the advantage or disadvantage of himself or some other, or cause him to think better or worse of himself or of some other person or of some thing. That other person may be either he who makes the communication or he whom the language concerns. All the direct effects of the publication of language are personal to the individual to whom the publication is made, and can extend no further. The publication of language can have no direct effects other than those we have enumerated; whatever other effects may result from the publication of language must be indirect or consequent upon one or some of these enumerated direct effects.

§ 29. The kind of effect produced, i. e., the direct or indirect effect, must be the same, whether the publication be by sound (speech) or by sign (writing or effigy), but the mode of publication may affect the amount of effect produced.

§ 30. It is scarcely supposable that the publication of language which concerns another or his affairs can produce no direct effect, but it is easy to suppose that it may not produce any indirect effect. The publication may occasion a resolve (a direct effect), and that resolve may never be put into execution (produce no indirect effect); or it may occasion a change in the opinion entertained of another, and that other may never be otherwise in any the least degree affected by that change of opinion. The change of opinion may not prevent or occasion any action different from what would otherwise have been done or forborne. While, however, this is supposable, it is improbable; the possibility, however, of such an occurrence suffices for our purpose. Sometimes, indeed, the direct and indirect effects are apparent, and their extent ascertainable; and again, it may be that neither the direct nor the indirect effect is apparent nor its extent ascertainable.

§ 31. It is impossible to anticipate all the indirect effects which may result from the publication of language; experience has made us acquainted with some of them, and to these we shall have occasion to refer by way of illustration.

§ 32. Among the direct effects of the publication of language which we have enumerated is the occasioning the person to whom the publication is made to think well or ill of another. Now, what one thinks of another is the reputation of that other, and hence, when by language one is induced to think ill of another, the reputation of that other suffers disparagement.' That others think well

1 Reputation is the estimate in which an individual is held by public fame in the place where he is known. (Cooper v. Greeley, 1 Denio, 347, 365.) Character is conduct, it is independent of reputation. Character must be true, while reputation may be false. (Seely v. Blair, Wright [Ohio], 683.)

"Character is defined by Webster to be the peculiar qualities impressed by nature or habit on a person, which distinguish him from others; these constitute real

of him is as gratifying to a man as that others think ill of him is distasteful, but their merely thinking well or ill of him by itself can neither benefit nor prejudice him. Un

character, and the qualities he is supposed to possess constitute his estimated character or reputation." (Per Welles, J., in Carpenter v. The People, 8 Barb. 608.)

Character is used by Bentham in the sense of "disposition," or rather of reputation for disposition." (3 Jud. Ev. 190-192.) Character "is the particular moral quality, not necessarily as it absolutely exists, but as it appears, or has appeared to exist. It is the exterior of life which the party habitually wears, or has worn, in his intercourse with others, as it becomes, or has become, a subject of observation, inference and ultimate opinion on their part. It is the grade or point at which he stands in their estimation in that particular respect. It is, in short, his reputation among them of possessing the quality in question." (Burrill Circ. Ev. 2d ed. 527.) "If the word reputation, when unqualified, does, ex vi termini, or in common parlance, mean general reputation-as we think it does-it is unnecessary to prefix the word general." (French v. Millard, 22 Ohio R. 50.)

"Reputation is thinking. I repute a man to be good or bad-that is, I think him to be so." (Maule, J., Doe dem. Padwick v. Wittcomb, 15 Jur. 778; 5 Eng. Law & Eq. Rep. 487.)

"The mere entry of something that was in a lease is not any expression of opinion or reputation." (Cresswell, J., Id.)

"The words character and reputation are often used as synonymous terms, though in fact not synonymous." (Bucklin v. Ohio, 20 Ohio R. 18; French v. Millard, 22 Id. 50.)

"Character is a term convertible with common report." (Kimmel v. Kimmel, 3 Serg. & R. 237, Gibson, J.)

“Character and reputation are the same." (Id. Duncan, J.)

"General character is the estimation in which a person is held in the community where he resides." (Marcy, J., Douglass v. Tousey, 2 Wend. 354.)

"Public opinion is the question in common cases where character is in issue." (Boynton v. Kellogg, 3 Mass. R. 192, Parsons, Ch. J.)

The word character has been variously used in legal proceedings, and sometimes denotes the personal, official, or special character in which a party sues or is sued as executor, officer, &c., but it more frequently refers to reputation or common report. (1 Cow. & Hill's Notes, 460, 1768; Leddy v. Tousey, 2 Wend. 352; King v. Root, 4 Wend. 113.) It is seldom used as synonymous with mere inclination or propensity, or even secret habit, nor is descriptive of the mere qualities of individuals, only so far as others have formed opinions from their conduct. (Safford v. The People, I Parker's Crim. R. 478.)

General character is the result of general conduct. (Sharp v. Scoggin, Holt's N. P. C. 541; 3 Amer. Law J. N. S. 145.)

Proof of general bad character-as that term is generally understood and used in society-does not necessarily and legally prove the fact that the witness's character for veracity is bad. (Gilbert v. Sheldon, 13 Barb. 627.)

"Chaste character" means actual personal virtue, not mere reputation. (Carpenter v. The People, 8 Barb. 603; Crozier v. The People, I Parker's Crim. R. 453; Safford v. The People, Id. 474.)

less in consequence of the opinion thus entertained, some act is done or forborne in reference to him or his affairs, which would not otherwise have been done or forborne, he is physically and pecuniarily in no wise better nor worse for such opinion. It cannot affect his person or his property. In the ordinary course of events, some indirect effect does always result from the publication of language. The probability or improbability of any indirect effect resulting depends sometimes on the kind of language published, and sometimes on the circumstances of the publication, and sometimes on both the kind of language published and the circumstances of the publication.

§ 33. We conclude, therefore that there may be an injury to the reputation without, and independently of, an injury to the person or property, and that an injury to the reputation does not necessarily imply an injury to the person or the property.'

1 Domat Civil Law, Public Law, Book III, enumerates "defamatory libels" among private offenses, and in the same book, title 1, "of crimes and offenses," enumerates three kinds of "goods;" "the third is that good which is called honor, and which men value above all other goods." The author then proceeds to inquire what is signified by the term honor, and concludes, “lastly, it signifies reputation." Further on it is laid down that honor may be wounded, either by injurious treatment of the honor or by assaulting the reputation, for one may offend another's honor by actions or by opprobrious language without lessening his reputation, and we may blemish his honor by words, by writing, and other attempts against his reputation, or one may attack by one and the same way both the reputation and person of another.