The ecclesiastical law courts of the early fourteenth century, unlike the common law courts of England, were not squeamish about the use of torture. So when in 1307 Philip the Fair of France turned on the Knights Templar, to whom he owed money, and charged them before Clement V with heresy, confessions from the knights were duly obtained. The lands of the Templars throughout Christendom were forfeited, but the question was, to whom? Was it to the sovereigns or lords paramount of the land, or to the heirs of the original donors of the land, or should the land be applied to the Knights Hospitaller, a parallel, but evidently non-heretical body? No easy answer emerged. In England the King in Parliament asserted that ‘by the law of the Realm’ the lands should escheat to the King and ‘other Lords of the Fees’, but then went on to hold that, because these individuals had evidently decided that according to ‘conscience’ it should not go to them but instead be transferred to the Hospitallers, that was what was to be done. In France, Philip was praised for his moderation in refraining from claiming for himself the property of his former creditors.

The question of the destination of property which is held for a charitable purpose that fails gives rise to a practice defined today in Snell's Equity: ‘If a charitable trust is initially impossible or impracticable, or subsequently becomes so … the court will apply the property cy-pres’; in other words, the court will apply it to some other charitable purpose ‘as nearly as possible’ resembling the original trusts. The modern concern is with charity. In medieval times it was the service of God, something slightly different. Of particular concern in the days of reform had been gifts in a will for masses for the good of the testator's soul in purgatory. Even if purgatory existed, which the reformers generally denied, how could prayers for an individual soul amount to service to God? It was easy for such a bequest to be held invalid as a ‘superstitious use’ and its endowment redirected. But where to?

In this magnificent work, Professor Sherman explores the origin of the cy-pres doctrine to its historical roots. If she has read the 800 books referred to in her bibliography (and I am sure that she has) then it is perhaps understandable that she expects a high standard of learning of her readers. She may flatter some of us, however, in her confidence that we can remember unprompted such matters as the provisions of the 1736 Mortmain Act. Her narrative of the history is lighter than that of the law, and endlessly entertaining. At the start of the Reformation in England much of the land of the monasteries was held to be useless, or misused, upon a variety of grounds; so, in Sherman's words, Henry VIII ‘squashed heresy rather than defining it’ (p 264).

Lord Eldon (almost the latest English judge to be mentioned in this book) expressed himself baffled by the origins of cy-pres. Different generations of lawyers found its origins in different places. Was it derived from Roman law, canon law or common law? The phrase itself, being Anglo-Norman, suggests an English common law origin; the language of canon law and civil law was Latin. Francis Bacon, an advocate of royal supremacy, said that royal prerogative was the root of the principle, and the redirection of property could be made in the Court of Chancery. Thus it was that court which intervened later in the seventeenth century in the case of a bequest of money to be distributed among clergymen who had been ejected from their livings for nonconformity – plainly an illegal purpose. King Charles II hoped to divert the money to the building of Chelsea College. But the court held that it should be applied in eodem genere, and should be designated merely for the chaplain at Chelsea College instead.

Professor Sherman does not trouble us with modern ecclesiastical law or indeed with much English law of the last 200 years. But her scholarship raises a question for today. A faculty may be sought and blithely granted for the disposal of a church treasure: for instance a silver chalice which has been given to the church for specific ecclesiastical purposes in perpetuity. The proceeds will be used simply to provide cash for the ordinary purposes of the church. What principle does the chancellor believe he or she is applying which justifies the departure from the purposes of the donor's gift? It is a matter worth consideration.