Dictionary of National Biography, 1885-1900/Herbert, Edward (1591?-1657)
HERBERT, Sir EDWARD (1591?–1657), judge, born about 1591, was son of Charles Herbert of Aston, Montgomeryshire, uncle of Edward, lord Herbert of Cherbury [q. v.], by Jane, daughter of Hugh ap Owen. He was admitted to the Inner Temple in November 1609; was called to the bar in 1618; entered parliament in 1620 as member for the borough of Montgomery, and sat for Downton, Wiltshire, between 1625 and 1629. He was one of the members who managed the impeachment of Buckingham in 1626, and one of the counsel for Selden on his prosecution after the dissolution of 1629. On 1 July 1630 he was appointed steward of the Marshalsea. In April 1633 he appeared with Serjeant Bramston for the Bishop of Lincoln on his prosecution by Laud for his lax views on the proper designation and position of the communion-table. In the following October he was elected a member of a committee to arrange a masque to be performed at Christmas by members of the four inns of court before the king and queen at Whitehall, by way of protest against the recent publication of Prynne's ‘Histrio-Mastix’ [see Finch, Sir John, Baron Finch]. On 20 Jan. 1634–5 he was appointed attorney-general to the queen, with precedence ‘immediately after the two ancientest of the king's serjeants-at-law and the attorney- and solicitor-general.’ He was autumn reader at the Inner Temple in 1636; was associated with the attorney-general in the prosecution of Burton, Bastwick, and Prynne for seditious libel in 1637; and was appointed treasurer of the Inner Temple in the following year. On 25 Jan. 1639–40 he was appointed solicitor-general, and was knighted at Whitehall 28 Jan. 1640–1. On 23 March he was returned to parliament for Old Sarum, for which place he also sat in the Long parliament until 29 Jan. 1640–1, when he accepted the office of attorney-general, and thereby, according to the then existing rule, became an assistant to the House of Lords, and vacated his seat in the commons. He had not particularly distinguished himself in the commons. According to Clarendon, who, however, was one of his personal enemies, he had ‘been so awed and terrified with their temper’ that he had ‘longed infinitely to be out of that fire,’ and was glad of the change to the upper house.
On 3 Jan. 1641–2 Charles gave Herbert instructions by letter under his own hand to exhibit articles of impeachment against Lord Kimbolton and the five members of the House of Commons (viz. Hollis, Hesilrige, Pym, Hampden, and Strode) who had been most active in securing the passing of the Grand Remonstrance. Accordingly, Herbert charged them the same day before the House of Lords with traitorously conspiring to subvert the fundamental laws, and other offences amounting to high treason. He then proceeded to have their houses searched and sealed up. On 12 Jan., after a strong protest from parliament, a royal message to both houses intimated that the impeachment would not be proceeded with. On 14 Feb. the commons impeached Herbert of high crimes and misdemeanors for his part in the affair. He pleaded (22 Feb.) that what he had done he had done by the express authority of the king, by whom the articles of impeachment had been furnished to him ready drawn, and Charles himself on 8 March sent a letter to the house to the same effect. The impeachment, however, was proceeded with, and ended in a verdict of guilty, the house at the same time refusing to inflict any punishment. On 23 April, however, in deference to the representations of the House of Commons, he was declared incapable of sitting in either house of parliament or holding any office but that of attorney-general, and was committed to the Fleet during the pleasure of the house. On 11 May he was enlarged, and had leave to reside in one of his houses within a day's journey of London, but was prohibited from coming either to London or Westminster without further order of the house. On the outbreak of the civil war he escaped and joined the king. In 1643, on the failure of the negotiations of Oxford, Herbert drafted by the king's direction a proclamation dissolving parliament. The king was dissatisfied with Herbert's draft, and protested ‘that he no more understood what the meaning of it was than if it were in Welsh.’ The design was abandoned. Nevertheless Charles offered Herbert the lord-keepership in 1645, which he declined, and was thereupon removed from office on 1 Nov. 1645. In July 1646 he was placed by parliament in the list of delinquents ‘incapable of pardon,’ and his estates were sequestered. In 1648 he went to sea with Rupert, over whom, according to Clarendon, he had a great and pernicious influence, ‘all his faculties being resolved into a spirit of contradicting, disputing, and wrangling upon anything that was proposed.’
After the death of Charles I, Herbert repaired to the Hague, and was made attorney-general by the new king. He thereupon proceeded to Brussels, where, with Sir George Ratcliffe, he attached himself to the Duke of York, undertook to form his household for him, excited his military ambition, and intrigued to marry him to a daughter of the Duke of Lorraine. Herbert thus rendered himself very obnoxious to the queen-mother. In 1651 he accompanied James to Paris, and took up his quarters at the Luxembourg. On 6 April 1653 he was appointed lord keeper of the great seal, and removed to the Palais Royal. Charles II refused to take him with him to Germany in June of the following year, whereupon Herbert resigned the seal, and retired from the palace. He never saw Charles again, dying suddenly at Paris of a gangrened wound in December 1657. He was buried in the cemetery of the Huguenots in the Faubourg St. Germain, the cost of the funeral being defrayed by his friend Richard Mason. Clarendon, who had a rooted antipathy for him, nevertheless gives him credit for ‘a very good natural wit improved by conversation with learned men but not at all by study and industry.’ He adds that he was ‘the proudest man living,’ and that ‘his greatest faculty was, and in which he was a master, to make difficult matters more intricate and perplexed, and very easy things to seem more hard than they were.’
Herbert married, between 1635 and 1652 Margaret, daughter of Sir Thomas Smith, master of requests, and relict of the Hon. Thomas Carey, second son of Robert, first earl of Monmouth (Herald and Genealogist, pt. xix. p. 45; Cal. State Papers, Dom. 1635–6 p. 5, 1651–2 p. 423). She survived him, and obtained at the Restoration a grant of the king's new-year's presents less 1,000l. for three years, in consideration of her husband's services, losses, and sufferings in the royal cause (Notes and Queries, 2nd ser. x. 425; Cal. State Papers, Dom. 1651–2 p. 423, 1660 p. 274). By her Herbert had three sons (Arthur, earl of Torrington, admiral [q. v.]; Charles, slain on the side of King William at the battle of Aughrim in 1691; and Edward [q. v.], lord chief justice in the reign of James II) and three daughters.[The Lives of all the Lords Chancellors, 1712, i. 129 et seq.; Peerage of England, 1710, ‘Herbert, Earl of Torrington;’ Foss's Lives of the Judges; Clarendon's Rebellion; Clarendon's Life, i. 210–12; Lord Herbert of Cherbury's Autobiography, ed. S. L. Lee, and Genealogical Table; Inner Temple Books; Official Lists of Members of Parliament; Whitelocke's Mem. pp. 6, 19; Cal. State Papers, Dom. 1628–9 p. 556, 1629–31 p. 281, 1633–4 p. 3, 1634–5 p. 470; Hacket's Scrinia Reserata, pp. 101 et seq.; Cobbett's State Trials, iii. 719; Dugdale's Orig. pp. 168, 171; Chron. Ser. p. 109; Rymer's Fœdera, ed. Sanderson, xix. 606, xx. 380, 448; Metcalfe's Book of Knights; Nicholas Papers (Camd. Soc.); Parl. Hist. ii. 1005, 1036; Verney's Notes of Long Parliament (Camd. Soc.), pp. 144 et seq.,161, 174; Lords' Journ. iv. 582, 603, 623, 634–5–645, 717, v. 11–12, 30, 58; Hist. MSS. Comm. 5th Rep. App. p. 350; Diary of John Rous (Camd. Soc.), p. 121; A Perfect Diurnall of the Passages, &c., 29 Aug.–5 Sept. 1642; Evelyn's Private Correspondence, 16 Oct. 1645 and 3 May 1653; Thurloe State Papers; Clarendon State Papers, iii. 158, 245; Cal. State Papers, Dom. 1650, pp. 236, 482.]