Definition
Per pais trial (also written "trial per pais") is the common law term for trial by jury — literally, trial "by the country." The phrase denotes the mode of trial in which a question of fact is submitted to a jury of peers drawn from the community, as distinguished from trial by the court alone (bench trial) or older non-jury modes such as trial by battle, trial by ordeal, or trial by wager of law. In historical common law pleading, when a party elected to submit a disputed fact to jury resolution, they were said to "put themselves upon the country" — a formula that invoked this concept directly.
Common Language
No ordinary English counterpart exists for this phrase in modern usage. The component word "pais" (from Old French, meaning "country" or "the people") has no independent English legal or common meaning in current use. The term is pure legal Latin-French hybrid of the common law tradition and carries no risk of confusion with ordinary English.
Common Confusion
Per pais should not be confused with per pares — trial "by one's peers" — though the concepts overlap significantly in their historical development and practical outcome. Per pares emphasizes the quality of the jury (that jurors be social equals of the accused or party), while per pais emphasizes the source of the jury (the community or country at large). In most contexts these distinctions collapsed into a single institution, and Magna Carta's guarantee of judgment "per legale judicium parium suorum" drew on both ideas simultaneously. Researchers encountering either phrase in historical pleading records should treat them as pointing to the same procedural institution while remaining alert to the distinct theoretical weight each phrase carried in constitutional argument.
Why It Matters in Research
This term appears almost exclusively in pre-twentieth-century sources — common law pleading manuals, year books, early American practice guides, and constitutional commentary. Researchers working in Law Mind's historical corpus will encounter it most often in two contexts: first, in the formal pleading formulas by which a party "put himself upon the country," signaling the close of issue and the demand for jury trial; second, in constitutional debates about the right to jury trial, where the phrase anchored arguments about the ancient provenance of that right.
The term is essentially absent from modern American or English legal writing, having been displaced entirely by "jury trial" or "trial by jury." Any encounter with per pais in a source dated after roughly 1900 signals either deliberate archaism or a work of legal history. In pre-1800 materials, the phrase is operative and technically precise.
A key research trap: Bouvier's entry groups per pais trial immediately with per plegium (by pledge or surety) as if in one entry — a typographical or editorial compression common in older dictionaries. These are entirely unrelated terms. Researchers extracting Bouvier citations should take care not to run the two together.
Historical Dictionary Support
Bouvier's Law Dictionary is the primary historical dictionary source available here, and its entry is characteristically compressed: "Trial by the country, i.e. by jury." This is accurate as far as it goes, but Bouvier gives the researcher no procedural context — no explanation of the pleading mechanics that made the phrase operative, and no note of its constitutional significance. The entry treats the term as self-evident to its audience, which it largely was for nineteenth-century common law practitioners trained in the forms of pleading.
What historical dictionaries as a class tend to miss on this term is the distinction between per pais as a pleading formula and per pais as a constitutional principle. The phrase did real work in both registers, and a single-line gloss collapses that duality. Researchers needing the constitutional dimension should look beyond dictionary sources to early American constitutional commentary and English common law pleading treatises.
Jurisdictional Note
Per pais trial is a common law term and appears across English, early American, and Commonwealth historical sources. Because it describes the foundational institution of jury trial rather than any jurisdiction-specific rule, its meaning is broadly uniform across common law systems — but its precise procedural context (what pleading formula triggered it, what issues were triable to a jury of right) varied between English and American practice and across American jurisdictions in the formative period.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia — Trial by Jury
See also Law Mind Encyclopedia — Common Law Pleading