Definition
To try, in legal usage, means to examine and investigate a controversy through the formal process of trial — to test the truth of disputed facts by judicial inquiry and the admission of evidence, for the purpose of resolving the issues between parties. The term carries both an active and a passive sense: courts try cases, counsel try causes, and defendants are tried for offenses.
Common Language
Modern common usage (Wiktionary): To attempt or endeavor; also, in archaic or technical senses, to separate, purify, or refine by a process of testing or extraction.
Historical common usage (Webster's 1913): To purify or refine metals; to separate the good from the bad by winnowing or sifting; to melt out oil or tallow from raw material.
The common-language senses cluster around testing, separating, and purifying — a useful analogy to the legal sense, but not its equivalent. In law, to try is not merely to attempt something but to conduct or submit to a formal, structured inquiry governed by rules of evidence and procedure. "I'll try to win the case" is ordinary English; "the court tried the case" is a legal act with procedural consequences.
Common Confusion
Try is occasionally used loosely as a synonym for hearing or examination, but these are not interchangeable. A hearing may dispose of pretrial matters, motions, or equitable issues without a full trial. To try, in the strict sense, implies a complete judicial examination of factual issues — typically by jury or by a court sitting as finder of fact. Similarly, to try a prisoner implies not merely arraigning or examining them, but conducting a full trial on criminal charges.
Why It Matters in Research
The primary value of understanding try in corpus research is recognizing that its legal meaning is narrow and procedurally loaded where it appears in historical pleadings, indictments, orders, and judicial opinions. Several navigational points:
First, in pleading practice, the word carries technical weight. Bouvier flags it specifically in the pleading context as "the tender of an issue for trial by a jury." When historical documents use try or tried in connection with an issue, they are often signaling that a matter has been formally submitted to jury determination — not merely considered or debated by a court.
Second, the passive construction — "tried by a jury," "tried before the court," "tried for the offense" — appears throughout indictments and judgments and is a reliable marker that a matter has passed through full trial procedure. Researchers indexing or searching historical criminal records should treat this language as a terminus in the procedural sequence, distinguishing it from earlier stages like examination, commitment, or arraignment.
Third, the older sources (Burrill especially) note the Latin triare and connect the act of trying to the testing and examination of factual truth. This evidentiary function is the root of try's legal significance. Corpus searches on trial-related terms should capture try and tried as variant forms that do not always appear alongside the noun trial but carry the same doctrinal weight.
Fourth, the Anderson entry deflects to ATTEMPT and TRIAL, which signals a historical awareness that try was sometimes used loosely to mean attempt — particularly in criminal law discussions about incomplete acts. Researchers working on attempt doctrine in historical sources should be alert to this overlap: older texts may use try where modern texts would use attempt, and the legal consequences attached to each word differ substantially.
Historical Dictionary Support
The major sources converge on a single core definition: to examine or investigate judicially. Black's (both editions) and Burrill are substantively identical, framing try as the proper function of court and jury in resolving issues of fact. Bouvier adds a pleading-specific gloss — the tender of an issue for trial — that the other sources omit, capturing the party-side act of submitting a dispute for jury resolution, not only the court's act of conducting the examination.
Burrill is the most thorough, and notably includes an antiquarian aside: the Roman law formula by which a husband divorced his wife, drawn from the Digest, shared the same root term in Latin usage. This is of limited doctrinal relevance but illustrates the deeper connotation of formal, decisive separation embedded in the word's history.
None of the sources substantively addresses how try functions in appellate versus trial court contexts — whether, for instance, a matter "tried" de novo on appeal is tried in the same sense as at first instance. Researchers working on standards of review or appellate procedure should not rely on historical dictionary definitions of try to resolve that question.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Trial; Pleading (Common Law); Jury Trial