Family and Education

b. c.1592,1 1st s. of Charles Herbert of Montgomery, Mont. and Jane, da. and h. of Hugh ap Owen of Aston.2 educ. Queen’s, Oxf. 1608; I. Temple 1610, called 1618.3 m. Margaret, da. of Sir Thomas Smith†, clerk of the parliaments 1597-1609, of Parson’s Green, Fulham, Mdx., wid. of Thomas Carey* (d.1634) of Whitehall and Parson’s Green, 3s.4 suc. fa. aft. 1626;5 kntd. 28 Jan. 1641.6 d. 18/28 Dec. 1657.7 sig. Edw[ard] Herbert.

Offices Held

Member, Virg. Co. 1619-24; cttee. 1621-4.8

J.p. Westminster, Mdx. 1621-42;9 commr. oyer and terminer, London 1621-41, the Verge 1626-39. Oxf. circ. 1641-2,10 sewers, Westminster 1627, Mdx. 1634, 1637, Gt. Fens 1640-1, Essex 1642,11 piracy, London 1630, Suss. 1637.12

Steward, Marshalsea Ct. 1627-30, Palace Ct. 1630-4;13 recorder, Salisbury, Wilts. 1634-5;14 bencher, I. Temple 1634-42;15 att. gen. to Queen Henrietta Maria, 1635-40;16 KC 1635-40;17 reader, I. Temple 1635, treas. 1638-9;18 sol. gen. 1640-1; att. gen. 1641-5;19 ld. kpr. 1653-4.20

Biography

Herbert’s father was a younger son of the Montgomery branch of the family, who fought in the Low Countries during the Elizabethan wars. He married a local heiress, and served as a magistrate from 1600, and as sheriff in 1607-8.21 At his admission to the Inner Temple in 1610, Herbert gave his address as Stalloe, just outside Montgomery, but the family also resided at Aston, on the English border near Bishop’s Castle, Shropshire.

Herbert was called to the bar in 1618, and in the following year he joined the Virginia Company as legal counsel, perhaps at the recommendation of Sir John Danvers*, the stepfather of his first cousin (Sir) Edward Herbert* of Montgomery.22 Herbert helped to promote the agenda of the company treasurer Sir Edwin Sandys*, investigating the former governor of Virginia, Sir Samuel Argall, and promoting the replacement of Sandys as treasurer by his ally Henry Wriothesley, 3rd earl of Southampton. The company had extensive plans for the parliamentary session which met at the end of January 1621, which might explain why Herbert sought election on this occasion.23 Doubtless with the consent of Sir Edward Herbert, he was returned for Montgomery Boroughs, with his father among those who signed the indenture.24

Whatever his motives may have been in securing a seat, Herbert is not known to have done much in his first Parliament. He was named to the committee for the bill to ban the receipt of secret pensions from foreign powers (25 May), and was presumably the ‘Sir Edward Herbert’ included on a committee for the Wey river navigation bill (6 March), while - as a lawyer - he is likely to have been the ‘Mr. Herbert’ named to the committee for the informers’ bill (19 April). Finally, it seems likely that he was the ‘Mr. Herbert’ included on the committee ordered to draft an appeal to the king to confirm the Commons’ privilege of free speech (12 Feb.), although this could have been his distant relation William Herbert I, MP for Cardiff.25 Herbert may have intended to stand for re-election in 1624, but the Montgomery seat went to his cousin George Herbert*, and he was not able to find another until January 1625, when the death of Sir William Dodington II* allowed his third cousin, William Herbert, 3rd earl of Pembroke, to bring him in for a vacancy at Downton, Wiltshire. The death of King James in March automatically dissolved the Parliament, but Herbert went on to represent Downton for the rest of the decade.

At the start of the 1625 Parliament, Herbert was named to the committee for privileges (21 June), and it is more likely that he, as a lawyer, rather than his academic cousin George Herbert, was named to committees for the alienations’ bill (25 June) and the larceny bill (6 August). However, he is not known to have contributed to the fractious debates which led to an early dissolution.26 This all changed in the 1626 Parliament, which was dominated by the attempted impeachment of the royal favourite, the duke of Buckingham. Pembroke, while covertly promoting attacks on the duke, aimed to avoid implicating his known parliamentary spokesmen, such as Sir Benjamin Rudyard*, and while Herbert’s relationship with the earl was all too obvious, he did serve as a useful functionary, chairing committees of the whole House, and reporting key debates.

Herbert remained aloof from the early inquiries into the duke’s misdeeds, until 4 Mar., when he was included among a delegation sent to the Lords to question Buckingham about his detention of a French ship, the St. Peter of Le Havre, which had provoked a French trade embargo. The duke, meanwhile, was attempting to rebuild the Anglo-French alliance founded upon his master’s recent marriage to Queen Henrietta Maria, and Herbert was one of those who heard Pembroke and Archbishop Abbot appeal for a generous vote of supply on the afternoon of 7 March.27 The Commons swiftly rebuffed this overture, and Dr. Samuel Turner, another Pembroke client, offered detailed charges against the duke, which angered the king. On 22 Mar. Herbert chaired the debate in which the Commons resolved to proceed with the investigation of Turner’s charges. A week later, Charles, dissatisfied with the Commons’ offer of three subsidies and three fifteenths, threatened an imminent dissolution, and was said to have signed arrest warrants for several MPs, but Pembroke apparently persuaded him to change his mind.28 Herbert was chairing a debate about this crisis on 30 Mar. when a message arrived from the Lords asking for a conference, which he was ordered to attend as one of the reporters. At this meeting, Buckingham answered some of Turner’s charges, and signalled that the investigation of grievances would be allowed to continue provided that MPs undertook to increase their financial offer. Many MPs were upset at being pressed over such matters, and when the duke’s client Sir Miles Fleetwood called for a fresh supply debate on 1 Apr., Herbert, in the chair, interrupted him to observe that the subject under debate was free speech, not supply. Three days later, Herbert reported the Remonstrance which arose from these debates to the House.29

The Crown’s position improved over the Easter recess, when (Sir) Dudley Carleton* brought news of a diplomatic rapprochement with the French. However, on 20 Apr. Herbert reported the Commons’ decision that Buckingham’s impeachment should take precedence over supply. Though he did not play any substantive part in the formulation of charges, on 3 May he was appointed to present one of the allegations to the Lords, concerning Buckingham’s engrossing of multiple offices. This was Pembroke’s chief grievance against the duke, and on 8 May Herbert warned the Lords that Buckingham had ‘too much power to betray the state of he were false, and too little ability to do service if he used his best industry’.30 During the presentation of the charges, Sir Dudley Digges* and (Sir) John Eliot* were consigned to the Tower for claiming that Buckingham’s treatment of King James during his final illness had hastened his death, a charge which invited the inference that Charles had been an accessory to his father’s murder. Herbert was conspicuously silent during the debates which secured the release of Digges and Eliot, perhaps because Pembroke did not wish to be seen to condone such rash accusations. A similar confrontation was narrowly avoided on 3 June, when John More seemed to suggest that Charles might be a tyrant; he quickly excused himself in a debate chaired by Herbert.31

At the end of May, Buckingham cocked a snook at his enemies by accepting yet another public office, that of chancellor of Cambridge university; Herbert reported the Commons’ decision to write to the university for an explanation (5 June). Three days later he was named to a committee appointed to draft yet another Remonstrance, this time about the king’s continued collection of customs duties before they had received parliamentary approval.32 On 9 June Charles gave the Commons a week to pass the subsidy bill, or face dissolution, which merely spurred MPs to throw caution to the winds. Next morning Herbert reported a resolution to examine the Parliament Roll from 1624 to verify the claims Sir John Digby*, earl of Bristol had brought against Buckingham in the Lords, while on 12 June he reported another Remonstrance in which the Commons justified its proceedings against the duke; the dissolution followed on 15 June.33 Herbert was one of the ringleaders of the impeachment summoned after the end of the session to appear before attorney-general (Sir) Robert Heath*, who required them to surrender their papers, so that the case against Buckingham could be heard in Star Chamber; Eliot, speaking for them all, refused to comply.34

Buckingham avenged himself against many of his enemies in the summer of 1626, but chose to placate the Herberts: Pembroke was promoted, becoming lord steward of the Household, while his post as lord chamberlain went to his brother (Sir) Philip Herbert*, earl of Montgomery, whose son was engaged to Buckingham’s daughter. Pembroke’s affinity thus remained aloof from the campaign against the Forced Loan, while in 1627 Herbert himself received a modest slice of Court patronage, as he was appointed steward of the Marshalsea Court.35 This preferment perhaps explains why Herbert played little part in the debates over the liberties of the subject which occupied the Commons during the first weeks of the 1628 parliamentary session. He did not remain entirely invisible, of course, for on 4 Apr. he was chosen to assist John Selden in his presentation about liberties before the Upper House, and was later included among the delegation which attempted to persuade the Lords to reconsider their rejection of the Commons’ case (23 April).36 However, he only re-emerged into the limelight on 1 May, after Charles lost his temper and demanded to know whether MPs were prepared to take his word as sufficient guarantee for the liberties of the subject. Herbert chaired the committee which considered how to answer this awkward question. In this role he was expected to hold aloof from disputation, but on 3 May, when many called to proceed by bill to confirm the subject’s liberties, Herbert reminded MPs that the order of debate was to answer the king’s message. Two days later, Charles allowed the Commons to proceed with a bill to confirm existing statutes, ‘without additions, paraphrases or explanations’.37 Herbert continued to chair the subsequent committee of the whole House in which the Petition of Right was drafted (6-13 May), but he played almost no part in the tumultuous debates which marked the final weeks of the session.38 On 28 May he was appointed to a committee to draft charges against John, Lord Mohun* for his misconduct in attempting to foil the election of two of Pembroke’s clients at the Cornish election; while at the end of the session he was included on the committee which briefly met to approve the title of the Petition of Right before it was sent to the printer (20 June).39

By the time Parliament reconvened in 1629, Buckingham had been assassinated, a development which improved the prospects of Pembroke’s affinity. One of the chief problems facing the Crown was the refusal of a growing number of London merchants to pay customs duties, which had still not been confirmed by Parliament. On 22 Jan. Herbert was named to a committee considering the plight of John Rolle*, an MP whose goods had been seized by customs officials while he was under parliamentary privilege. Herbert was named to chair the committee investigating this grievance on the following day, and except on 13 Feb., when he was granted leave to plead a case before the House of Lords as counsel for Lord Henry Clifford*, he remained closely involved with this dispute.40 The case was laid aside for some time while the Commons argued over Arminianism, but it was reopened on 10 Feb., when Rolle complained that he had been summoned before Star Chamber. Herbert was named to the committee appointed to examine customs officials about their seizure of merchants’ goods (14 Feb.), which established that Rolle had claimed parliamentary privilege at the time his goods were taken. Eliot and others resolved to hound the customs officials over this affront, and on 19 Feb. Herbert was appointed chairman of the investigating committee.41 On 23 Feb. he duly reported that Rolle’s privilege claim was valid, but he may not have shared Eliot’s self-destructive urge, as the debate concluded with Secretary (Sir) John Coke* advising that Charles was prepared to vouch that the customers had acted under his specific instructions. Eliot and several other MPs forced a violent confrontation on 2 Mar., which provoked Charles into ordering a summary dissolution.42

Herbert served as one of the counsel for John Selden when the latter was prosecuted in Star Chamber for his part in these tumults, and also pleaded for the puritan Henry Sherfield* during his prosecution for iconoclasm in 1633. However, his position at Court was not thereby threatened, as acceptance of these controversial briefs merely proved his usefulness as counsel. Indeed, when the Marshalsea Court was reorganized in 1630, he retained his position as steward.43 In 1634-5, presumably with the support of Montgomery (by then also 4th earl of Pembroke), Herbert was appointed a bencher of the Inner Temple, attorney-general to the queen, and king’s counsel; it was in the latter role that he served as one of the prosecuting counsel at the trial of the religious radicals Bastwick, Burton and William Prynne† in 1637. An unsuccessful contender for the post of attorney of the Court of Wards after the death of Sir Walter Pye*, in 1640 he became solicitor general, in which capacity he attempted to justify the Personal Rule in the Short Parliament. As attorney-general, from January 1641, he drafted the impeachment of the Five Members which Charles attempted to implement on 4 Jan. 1642, thereby provoking the breach with Parliament which led to Civil War.44

Herbert continued to serve Charles at Oxford, under the patronage of Prince Rupert, but in the autumn of 1645, with Rupert in disgrace and the royalist cause unravelling, he declined the post of lord keeper, and was dismissed. He went into exile in Paris, where Charles II appointed him lord keeper in 1653, but he became involved in a plot to unseat Sir Edward Hyde†, and in the following year, when he learned that he was not to follow the Court to Germany, he resigned. He died in Paris on 28 Dec. 1657 (new style), apparently without leaving a will. All three of his sons sat in Parliament after the Restoration; none had any heirs.45

Ref Volumes: 1604-1629

Author: Simon Healy

Notes

• 1. Assuming age 18 at admiss. to I. Temple.
• 2. Dwnn, Vis. Wales ed. S.R. Meyrick, i. 312; NLW, CPD 691, f. 7v.
• 3. Al. Ox.; I. Temple Admiss.; CITR, ii. 107.
• 4. Vis. Herts. (Harl. Soc. xxxii), 137.
• 5. Fa. was a j.p. until 1626: JPs in Wales and Monm. ed. Phillips, 132-9.
• 6. Shaw, Knights of Eng. ii. 208.
• 7. Nicholas Pprs IV ed. G.F. Warner (Cam. Soc. ser. 3. xxxi), 32-3.
• 8. Recs. Virg. Co. ed. S.M. Kingsbury, i. 281, 473.
• 9. C213/4, f. 117.
• 10. C181/3, ff. 47, 198v, 217; 181/5, ff. 154v, 200v, 214, 219.
• 11. C181/3, f. 213v; 181/4, f.191; 181/5, ff. 69v, 81, 168, 196v, 214v, 227v.
• 12. C181/4, f. 37; 181/5, f. 68.
• 13. C181/3, f. 217; 181/4, f. 158; CSP Dom. 1629-31, p. 281.
• 14. W.R. Prest, Rise of the Barristers, 251.
• 15. CITR, ii. 216.
• 16. C66/2673/11.
• 17. Law Officers and King’s Counsel ed. J.C. Sainty (Selden Soc. suppl. ser. vii), 85.
• 18. CITR, ii. 220, 245.
• 19. Law Officers and King’s Counsel, 46, 62.
• 20. R. Hutton, Charles II, 74, 86.
• 21. Life of Lord Herbert of Cherbury ed. J.M. Shuttleworth, 4; JPs in Wales and Monm. 132-7; List of Sheriffs comp. A. Hughes (PRO, L. and I. ix), 263.
• 22. Recs. Virg. Co. i. 281, 284, 321-2, 395, 445-6.
• 23. Ibid. i. 284, 357, 384-5; SIR EDWIN SANDYS.
• 24. C219/37/361.
• 25. CJ, i. 518a, 539b, 582b, 626b.
• 26. Procs. 1625, pp. 206, 246, 411.
• 27. Procs. 1626, ii. 195, 216; C. Russell, PEP, 263-6, 287-8.
• 28. Procs. 1626, ii. 342, 398; Russell, 289-92; Cent. Kent. Stud. U269/1/CP16/2.
• 29. Procs. 1626, ii. 397-8, 418, 428; Russell, 292-5.
• 30. Procs. 1626, iii. 30, 140, 183, 192; Russell, 295-6, 300-2.
• 31. Russell, 318-19; Procs. 1626, iii. 350.
• 32. Procs. 1626, iii. 369, 392; R. Lockyer, Buckingham, 325.
• 33. Procs. 1626, iii. 415, 423-4, 436-41; Russell, 320-2.
• 34. Eliot Letterbook ed. A.B. Grosart, 6-9.
• 35. Russell, 326-7; G.E. Aylmer, King’s Servants, 141; C181/3, f. 217.
• 36. CD 1628, ii. 296; iii.43; Russell, 360-1; M. Kishlansky, ‘Tyranny Denied: Charles I, Att.-Gen. Heath and the Five Knights’ Case’, HJ, xlii. 76-9.
• 37. CD 1628, iii. 208, 244-5, 272; Russell, 367-9.
• 38. CD 1628, iii. 268, 302, 326, 395; Russell, 369-72.
• 39. CD 1628, iv. 3, 390.
• 40. CJ, i. 921a, 922a, 929b; Russell, 402-4.
• 41. CJ, i. 930a, 931b; CD 1629, pp. 85, 167, 228.
• 42. CD 1629, pp. 168, 237; C. Thompson, ‘Divided Leadership of the House of Commons in 1629’, in Faction and Parl. ed. K. Sharpe, 250-2.
• 43. CSP Dom. 1628-9, p. 556; 1629-31, p. 281; State Trials ed. T.B. Howell, iii. 519-39.
• 44. CITR, ii. 217; C66/2673/11; Law Officers and King’s Counsel, 46, 62, 85; Howell, iii. 719; Strafforde Letters (1739) ed. W. Knowler, i. 506.
• 45. Hutton, 74, 81, 85-6; Nicholas Pprs. IV, 32-3; HP (Commons) 1660-90, ii. 526-9.