Definition
Per pais (Law French: "by the country") is an archaic term of pleading meaning trial or determination by jury, as opposed to trial by the court alone. In early common law procedure, to submit a question "per pais" was to submit it to a jury of the country — that is, to one's peers from the local community — rather than resolving it through judicial decision on the record or through other non-jury modes of trial. The phrase appears most frequently in treatises and reports discussing the mechanics of common law pleading, particularly in distinguishing the types of issues triable by jury from those triable by the court as matters of law.
Common Language
Modern common usage (Wiktionary): No standard entry. "Pais" does not appear in modern general English dictionaries as a standalone word.
Historical common usage (Webster's 1913): Not listed. "Pais" was already receding from ordinary use by the nineteenth century and appears almost exclusively in legal contexts.
The phrase belongs entirely to Law French, the Anglo-Norman legal dialect that persisted in English common law procedure long after it ceased to be a living language. A reader encountering "per pais" in a historical legal text without familiarity with Law French vocabulary would find no ordinary English meaning to guide them.
Common Confusion
Per pais is closely associated with, and sometimes confused with, the standalone term pais, which Burrill and other historical dictionaries treat as a separate entry meaning "the country" in the broader procedural sense — encompassing neighbors, bystanders, or the community as a source of legal knowledge or testimony. The compound phrase per pais specifically signals the mode of trial (by jury), while pais in isolation can appear in other contexts, such as "matter in pais" (a matter established by conduct or parol evidence, outside the record). Researchers should not assume the two phrases are interchangeable; the prepositional construction per pais carries the specific procedural meaning of jury trial.
Why It Matters in Research
Per pais is a navigational term rather than a doctrinal concept. Its primary research value is as a marker: when you encounter it in a historical source, it signals that the surrounding text is addressing the mechanics of common law pleading and the allocation of questions between judge and jury. Blackstone uses the phrase in Book III in the context of issues triable by jury, making it a reliable pointer to foundational jury-trial doctrine.
The term is essentially extinct in modern legal writing. Researchers working in post-nineteenth-century primary sources will not encounter it. Its appearance in a source is itself a dating clue — it strongly suggests an eighteenth-century or earlier English common law text, or a nineteenth-century treatise closely following those sources.
Researchers should also be alert to the variant spelling and capitalization patterns in historical sources: "per pays," "per pais," and hyphenated forms all appear. Search strategies in digitized historical corpora should account for these variants, as OCR errors compound the inconsistency.
The term has no meaningful jurisdictional variation in the sense that it is uniformly archaic across all common law systems. It is not in active use in any jurisdiction.
Historical Dictionary Support
Burrill's Law Dictionary provides the essential entry: "By the country; by jury," with a citation to Blackstone's Commentaries Book III, pages 348–349. This is the authoritative secondary reference point. Burrill's brevity is appropriate — the term does not carry complex doctrine on its own; it is definitional shorthand for jury trial within the procedural vocabulary of Law French.
Other major historical dictionaries, including Black's early editions and Bouvier's, address the concept under the related entry pais rather than under per pais as a compound, reflecting some inconsistency in how historical lexicographers organized Law French phrases. The Burrill entry is among the more precise treatments in treating per pais as a distinct phrase warranting its own entry.
What historical dictionaries collectively omit is any sustained discussion of how the per pais/per record distinction mapped onto the practical mechanics of issue-joinder in pleading — that analysis must be sought in the treatise literature, particularly Blackstone and Stephen's Principles of Pleading.