Definition
Time out of memory is a legal phrase denoting a period so far in the past that no living person, nor any reliable record within legal cognizance, can attest to its beginning. It is the temporal threshold beyond which the law treats certain facts, rights, or customs as presumptively established without need of proof of origin. In English common law practice, this threshold was fixed by statute at 1189 — the first year of the reign of Richard I — though in practical application courts came to treat the concept more flexibly, requiring only that the usage or right in question predated living memory.
The phrase is functionally synonymous with "time immemorial" and "time out of mind," though each carries slightly different rhetorical weight in historical sources. All three locate a claim or custom at a point so remote that the law presumes its lawful origin rather than requiring it to be proven.
Common Confusion
The relationship between "time out of memory" and "time of memory" has generated persistent confusion. As Burrill notes, "time out of memory" ought logically to refer to a period anterior to "time of memory" — that is, before the legal memory threshold of 1189. But historical sources have sometimes applied the phrase to the same period as "time of memory," conflating the two rather than treating them as opposites. A researcher encountering either phrase in older authorities should not assume consistent usage: some writers use "time out of memory" to mean before all legal memory, while others use it loosely to mean simply a very long time ago, overlapping with "time of memory" itself. Black's defines the phrase without flagging this problem; Burrill does flag it, making Burrill the more reliable guide for parsing historical usage precisely.
Why It Matters in Research
This term is a navigational hazard in historical corpus research for several reasons.
First, the phrase appears in three near-synonymous forms — "time out of memory," "time out of mind," and "time immemorial" — used interchangeably in many sources but with technical distinctions worth preserving when precision matters. A full-text search for one will miss instances of the others.
Second, the internal inconsistency Burrill identifies — sources treating "time out of memory" as both opposite to and coextensive with "time of memory" — means the phrase cannot be read at face value without checking context. Pre-19th-century sources are especially prone to loose usage.
Third, the term appears most frequently in property law contexts (prescription, easements, customary rights), constitutional and common law arguments about ancient liberties, and evidence discussions about the admissibility of reputation and tradition evidence. Researchers working in any of these areas will encounter it, but the relevant doctrine may be indexed under "time immemorial" rather than "time out of memory" in secondary sources and digests.
Fourth, the fixed statutory date of 1189 (from the Statute of Westminster I, 1275) is an English common law rule. American courts adapted the concept, often treating it more practically as "beyond the memory of any living witness" rather than tying it to a specific year. This shift matters when tracing how the doctrine traveled across jurisdictions.
Historical Dictionary Support
Black's Law Dictionary handles the phrase briefly, treating it as equivalent to "time beyond memory" and "time out of mind" without elaboration or analysis. It gives researchers the synonym cluster but no analytical framework.
Burrill's Law Dictionary is significantly more useful. Burrill not only provides the synonym cluster but explicitly identifies the logical structure: "time out of memory" should refer to a period anterior to "time of memory," making the two phrases true opposites. He then flags — with evident frustration ("strangely referred") — that sources have confused the two by applying "time out of memory" to the same period as "time of memory." Burrill's cross-reference to "Time immemorial" signals that the substantive doctrine lives under that heading, and researchers should follow that path for fuller treatment.
Neither dictionary addresses the American adaptation of the doctrine or the evidentiary dimension of the phrase. For those, treatise literature on prescription and customary rights is the appropriate next step.
Jurisdictional Note
English common law fixed the time of memory at 1189 by statute. American jurisdictions largely abandoned the fixed date and treat time immemorial functionally — typically meaning beyond the memory of living witnesses or the oldest available records. This makes the phrase more elastic in American authority than in English, and a researcher should not assume the 1189 date applies outside an English law context.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Time Immemorial; Prescription; Custom and Usage.