Definition
In perpetuam rei memoriam (Latin: "for the perpetual memory of the thing") is a legal phrase describing proceedings or instruments taken to preserve testimony, admissions, or other evidence before it would otherwise be lost — typically before a formal action has commenced or when a witness is unavailable or at risk of dying. The phrase names both a purpose (the permanent preservation of a fact or testimony) and a procedural device: a proceeding in perpetuam rei memoriam is one taken out of the ordinary course of litigation, aimed not at immediate adjudication but at locking in a record for future use.
The term appears most often in connection with:
1. Perpetuation of testimony — depositions or examinations taken before suit is filed, or during a proceeding, to preserve the sworn account of a witness whose availability cannot be guaranteed.
2. Instruments or records — documents executed or enrolled with the deliberate purpose of creating a permanent, authenticated memorial of a transaction or fact.
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Common Confusion
Do not conflate in perpetuam rei memoriam with a standard pre-trial deposition. A routine discovery deposition is taken for use in pending litigation; an in perpetuam proceeding is taken precisely because there is no current action, or because ordinary litigation mechanisms cannot yet be invoked. The purpose is preservation, not discovery. Similarly, the phrase is sometimes loosely used to describe any perpetual memorial instrument, which can blur the procedural precision of the original Latin term.
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Why It Matters in Research
Researchers will encounter this phrase primarily in equity practice materials, older treatise discussions of the bill to perpetuate testimony, and in the Roman and civil law foundations that heavily influenced early English and American equity courts. Several practical research points:
**Procedural lineage**: The in perpetuam proceeding is the direct ancestor of the modern rule allowing perpetuation of testimony before an action is filed (e.g., Federal Rule of Civil Procedure 27 in U.S. practice). Tracing the doctrine through historical sources requires recognizing that the Latin phrase and the modern rule describe the same underlying function, but under very different procedural frameworks.
**Equity court context**: In English and early American practice, this proceeding was brought in a court of equity — not at common law. Researchers consulting old chancery records or equity practice guides will find it embedded in discussions of bills in equity, not pleadings at law. The phrase signals an equity forum even when the surrounding text does not make this explicit.
**The "before action" trap**: Historical sources vary on whether the proceeding could be used to perpetuate testimony for a future action not yet ripe, or only when witnesses were aged or infirm. Reading sources that restrict the device to imminent-death situations will give a narrower picture than later practice, which expanded the circumstances justifying perpetuation.
**Corpus connections**: Materials on bills to perpetuate testimony, pre-action depositions, and equity pleading will reference this phrase. Gilbert's Forum Romanum (cited in Bouvier) is a foundational source for the civil law backdrop; researchers tracing the doctrine through American equity treatises should expect the Latin phrase to appear alongside English-language procedural discussions rather than as a standalone topic.
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Historical Dictionary Support
Bouvier's Law Dictionary defines in perpetuam rei memoriam as "for the perpetual memory or remembrance of a thing," citing Gilbert's Forum Romanum at page 118. The entry is spare — Bouvier treats the phrase as a Latin label requiring brief translation rather than extended doctrinal treatment. This is consistent with how 19th-century American legal dictionaries handled procedural Latin: the phrase was assumed to be familiar to practitioners trained in equity, so dictionaries flagged the translation and pointed to a treatise source rather than unpacking the full doctrine.
Bouvier's source, Gilbert's Forum Romanum, situates the phrase in the civil law tradition, underscoring that the in perpetuam proceeding reached American equity practice through the same Roman and civilian channels that shaped English chancery. This lineage matters: the phrase carries with it assumptions about witness examination, the role of the court as custodian of preserved testimony, and the purpose of the record that differ from common law evidentiary thinking.
What the historical dictionaries miss is the procedural evolution. By the time of Bouvier's later editions, equity practice in the United States was already being codified and reformed. The phrase was becoming a learned reference to a doctrine in transition rather than a live procedural term of art, a shift the dictionary entry does not reflect.
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Jurisdictional Note
The in perpetuam proceeding was rooted in equity jurisdiction. In U.S. federal practice, the merger of law and equity under the Federal Rules of Civil Procedure absorbed its function into Rule 27 (perpetuation of testimony). State courts vary: some retain distinct perpetuation procedures by statute or rule; others have folded the function into general deposition practice. Researchers working in state court historical records should check whether the jurisdiction maintained a separate equity court before procedural merger.
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