Definition
A Latin adverb meaning "from memory" or "by recollection." In legal usage, memoriter refers to testimony or proof of a document's contents drawn from a witness's personal recollection rather than from the document itself or a certified copy. Memoriter proof of a written instrument is evidence furnished by a witness who previously saw, read, or otherwise knew the instrument and testifies to its contents from memory.
Common Language
Modern common usage (Wiktionary): By, or from, memory; by heart.
Historical common usage (Webster's 1913): By, or from, memory.
The common and legal meanings are essentially aligned, but the legal context adds procedural weight absent from ordinary usage. In law, the question is not merely whether a witness remembers something, but whether memory-based testimony is competent and sufficient to establish the contents of a writing when the original is unavailable. The word signals a specific evidentiary posture, not just a cognitive act.
Why It Matters in Research
Memoriter appears almost exclusively in older American and English case law and treatises dealing with the best evidence rule — the doctrine requiring production of an original writing when its contents are in dispute. Understanding the term is essential when researching pre-twentieth-century cases involving lost, destroyed, or otherwise unavailable documents, where courts had to decide whether a witness's recollection could substitute for the instrument itself.
Researchers should be aware that the word drops out of modern legal writing almost entirely. Contemporary courts and rules (including the Federal Rules of Evidence, Article X) address the same problem under headings like "secondary evidence," "proof of contents," or "admissibility of other evidence of content," without using memoriter at all. When searching historical reporters and digests, memoriter is a useful index term for locating cases about testimonial proof of document contents — but searching modern databases for the term will return little of value.
The concept persists; the label does not. A researcher who encounters memoriter in a nineteenth-century opinion should connect it to the modern secondary evidence framework, not treat it as a defunct or inapplicable doctrine.
Historical Dictionary Support
Both Black's editions — the first and second — give identical, minimal entries: the Latin gloss and a single illustrative sentence about proof of a written instrument. Neither edition places the term within the broader best evidence rule framework, discusses the standard of competency required for such testimony, or notes any jurisdictional variation in how courts treated memory-based proof of writings. The entries are consistent with each other but thin, functioning more as a translation note than a legal analysis.
What the historical dictionaries miss: the contested doctrinal territory around memoriter proof. Courts did not uniformly accept such testimony, and the sufficiency of a witness's recollection — particularly regarding the precise wording of a legal instrument — was frequently disputed. Treatises on evidence from the same era, such as Greenleaf on Evidence and Wigmore on Evidence, address the admissibility and weight of secondary evidence of writings in far greater depth than Black's entries suggest.
Jurisdictional Note
The term itself carries no jurisdictional limitation, but the rules governing when memory-based proof of a document's contents was admissible varied by state common law and, later, by codified evidence rules. Researchers working in a specific jurisdiction should consult that state's historical evidence doctrine rather than treating memoriter proof as universally accepted.