HERBERT, William (c. 1661-1745)

William Herbert, Lord Herbert, was styled Viscount Montgomery from the time his father William Herbert, earl of Powis, considered the leading Catholic peer in England and Wales, was raised in the peerage by his co-religionist James II as marquess of Powis in March 1687. After the Revolution, Powis served James II in both France and Ireland and was further granted another elevation when he was made duke of Powis in the Jacobite peerage, a title which was never recognized in England for him or his son.

In 1685 Montgomery married Mary, the daughter of the Catholic Sir Thomas Preston of Furness, Lancashire, a match which some contemporaries calculated would bring £30,000 to the Herbert family. In May 1687 he was commissioned colonel of a regiment of foot, and in Feb. 1688 he was made a deputy lieutenant in all 12 Welsh counties as well as in the marcher county of Monmouthshire. Ibid. 1686-7, p. 422; 1687-9, p. 152. At the Revolution, Montgomery was captured and secured by the Protestant officers of his own regiment garrisoned at Hull, who declared the port for William of Orange, but he did not otherwise suffer and on Christmas Day 1688 he received a licence to travel to France. CSP Dom. 1702-3, pp. 73-4. He returned before the declaration of war, for on 6 May 1689 he was imprisoned in the Tower for ‘dangerous practices’ against the government, William III personally indicating him as a threat. He was not discharged until 7 November. Halifax Letters, ii. 211-16; Luttrell, Brief Relation, i. 530, 601, 610; Morrice, Ent’ring Bk. v. 109, 243. The Commons initially included his father Powis in their proposed bill of attainder of June 1689, and in October 1689 after this bill failed to pass Powis, with other prominent followers of James II such as James Fitzjames, duke of Berwick, was indicted for being in rebellion against the crown. Failing to appear to answer these charges of treason as he was abroad with James II, Powis was proclaimed an outlaw in February 1690. HMC Lords, ii. 227-30; Luttrell, Brief Relation, i. 550. This outlawry amounted to attainder, extinguishing the peerages held by Powis so that Montgomery became in law a commoner. He was, nevertheless, still styled Viscount Montgomery by his contemporaries. As ‘Lord Montgomery’ he was included in a proclamation against Jacobite traitors issued on 14 July 1690, following the defeat at Beachy Head. CSP Dom. 1690-1, p. 65.

By the outlawry, the landed estate of the marquess of Powis, estimated to be worth £10,000 p.a. and with property principally in Middlesex, Northamptonshire and Montgomeryshire, where the ancestral home of Powis Castle was located, became forfeit to the crown. Luttrell, Brief Relation, ii. 349, 356, 444, 475, 476. In May 1695 the king granted part of the estate to his Dutch followers Hans Willem Bentinck, earl of Portland, and William Henry Nassau van Zuylestein, earl of Rochford (who received the major part of it, including Powis Castle). CTB, x. 1043-59; Luttrell, Brief Relation, iii. 470, 472. Rochford’s free and unhindered possession of these lands was hampered by the multitude of encumbrances already charged on them, and Montgomery (as he shall continue to be called in this biography), through his and his father’s trustees, agents and lawyers, soon buried Rochford in a mountain of litigation which enabled Montgomery in many instances to benefit from the Herbert lands. However, the estates were not restored to his full legal possession until the reign of George II.

Montgomery became deeply involved in Jacobite circles in London, and he was heavily implicated when the assassination plot was revealed in early 1696. Bodl. Carte 181, ff. 529-33, 566, 582; HMC Stuart, i. 70; CSP Dom. 1696, p. 109-111; HMC Lords, n.s. ii. 277-9. On 23 Mar. 1696 a reward was offered for the apprehension of both Montgomery and his co-conspirator Sir John Fenwick^‡, and on 27 May Montgomery was indicted for treason. Luttrell, Brief Relation, iv. 33, 64. He absconded and went into hiding, during which time, on 12 July 1696, his father Powis died at St Germain. CSP Dom. 1696, p. 181; Add. 72486, f. 54; Bodl. Ballard 39, f. 128. In the view of Montgomery and his adherents he was now 2nd marquess, and even 2nd duke, of Powis, but because of his father’s outlawry and consequent attainder, neither of these titles was recognized by the English government. On 15 Dec. 1696 Montgomery surrendered himself in order to prevent his own outlawry for failure to appear to an indictment of treason, which would have made him liable to suffer execution without trial if apprehended. Vernon-Shrewsbury Letters, i. 125. James Vernon^‡ felt able to reassure Charles Talbot, duke of Shrewsbury, that this precaution was to no avail as the sentence of outlawry had already been passed just before Montgomery came out of hiding, but it soon transpired that the sheriffs of London had made a technical mistake when dealing with the legal papers which rendered it invalid. Ibid. 143; Bodl. Carte 130, f. 377; Luttrell, Brief Relation, iv. 221, 305. When one of these sheriffs, Sir John Woolfe, died in 1711 he was praised for having done ‘a good office to my Lord Powis [sic] in not returning the outlawry … in time, by which the estate was preserved to the family, and a great favourite [i.e. Rochford] that had begged it of the king was disappointed of that sweet morsel’. Longleat, Bath mss, Thynne pprs. 47, ff. 313-14.

Montgomery had already appeared as a central character in Fenwick’s second confession of September 1696, which targeted more well-known Jacobites such as Montgomery and Thomas Bruce, 2nd earl of Ailesbury, but did not provide sufficient evidence for a prosecution. Montgomery may have surrendered with a view to defend himself from any further allegations from Fenwick, then under threat of attainder and pressured to escape this fate by implicating his colleagues further. HMC Buccleuch, ii. 410-12; Add. 47131, ff. 36-39v. Fenwick suggested to his wife that Montgomery was ‘afraid’ of Fenwick testifying more fully against him, but he was also sure that Montgomery was trying successfully to protect himself by making ‘conditions’, particularly by compounding with Rochford for £20,000 for the Herbert estate. There were rumours that Montgomery would be freed for making a ‘large discovery’ of the plot. Add. 47608, ff. 40-41, 60-61, 65-66; Bodl. Carte 130, f. 377; Luttrell, Brief Relation, iv. 157, 164. He did escape Fenwick’s fate, but remained in Newgate for several months. It was not until 19 June 1697 that he was bailed because of the unhealthy conditions in the gaol, aided by the absence from the country of William III, who had expressed strong opposition to Montgomery’s release. Luttrell, Brief Relation, iv. 177, 183, 229, 239, 241; Vernon-Shrewsbury Letters, i. 283. Throughout the winter of 1697-8 Montgomery argued that he should be formally tried on his flawed indictment (for which mistake the government sued the sheriffs of London) or discharged from his bail. Luttrell, Brief Relation, iv. 221, 273, 292-3, 305, 315-16.

The question of his legal status was resolved by the Act against Correspondence with the Pretender passed by Parliament in the wake of the Treaty of Ryswick, which required the banishment or prosecution of all persons who had gone to France during the war without licence. Montgomery’s petition to be dispensed from the provisions of the act was rejected outright, and he left the kingdom for France shortly before the deadline passed on 1 Feb. 1698. Vernon-Shrewsbury Letters, i. 478-9; Longleat, Bath mss, Prior pprs. 9, ff. 22-23. That Montgomery was still formally under indictment did not seem to concern government supporters such as Vernon, who commented to Shrewsbury that ‘I suppose the king’s bench or session will discharge the bail of those that are bound by this act to quit the kingdom, when it shall be made appear they have done so in obedience to the act’. Vernon-Shrewsbury Letters, i. 486; NLW, Powis Castle Corr. 459, 461, 463.

Montgomery left behind him the unresolved issue of his father’s forfeited estates and Rochford’s claims on them. The rumoured composition between them does not appear to have stopped the litigation conducted by the trustees of the first marquess, the influential peers Thomas Herbert, 8th earl of Pembroke, and Henry Somerset, duke of Beaufort. In April 1697 Rochford invoked his privilege to forestall a number of actions of ejectment that were then in the law courts against his tenants on the Herbert lands. On 17 Mar. 1698, with Montgomery absent and in exile, Rochford submitted to the House a petition against these continuing contraventions of his privilege, but exactly two weeks later, facing opposition from Pembroke in particular and perhaps seeing that the mood of Parliament and the country at large was increasingly against the Dutch courtiers of William’s entourage, he agreed not to insist upon his privilege. HMC Lords, n.s. iii. 145; Luttrell, Brief Relation, iv. 358, 362. From that point Rochford effectively abandoned his claim to the Herbert estates, especially after he left England for his native Netherlands on the accession of Anne.

Montgomery continued to petition a hostile William III for a licence to return to England, but although Luttrell reported in 1701 that such a licence had been granted, Montgomery still had to petition the new queen in May 1702 to return. CSP Dom. 1699-1700, p. 145; 1700-02, p. 458; Luttrell, v. 6. He claimed that he had lived in exile in Flanders ‘above four years to the great prejudice of his private concerns and the undoing of his creditors’ as he could not raise money on his estates. CSP Dom. 1702-3, pp. 73-74, 415-16. When Montgomery finally returned to England in late May 1703, still under indictment, he immediately surrendered himself and was admitted to bail, promising to appear immediately before either secretary of state upon summons. Luttrell, Brief Relation, v. 288, 547; CSP Dom. 1702-3, p. 724.

Montgomery spent the remainder of his days in England petitioning to be allowed to bring in a writ of error to reverse his father’s outlawry and trying to rebuild his estate. CSP Dom. 1704-5, p. 266; HMC Portland, ii. 206-7; Add. 61608, f. 104; Add. 70288, Powis to Oxford, 5 Dec. 1713; Herts. ALS, DE/P/F55. He still suffered for his open Catholicism and only slightly less open Jacobitism and, although ‘as innocent and harmless a man as any that suffered in the Popish Plot’ (as a sympathizer thought), he was imprisoned at the time of the Jacobite rising of 1715 and not released until April 1716. Stowe 750, f. 114-16; HMC Var. viii. 94; HMC Portland, v. 522. It was not until 1722 that Montgomery was able to obtain the reversal of his father’s outlawry, presumably through the writ of error for which he had long petitioned, and was restored to full legal possession of his estates and of his peerage as 2nd marquess of Powis – but not as the 2nd duke of Powis in the Jacobite peerage, which title he always claimed to the extent that he even placed a ducal crest on his household furnishings. As marquess of Powis he was formally summoned to the House on 8 Oct. 1722, but still refused to take his seat, unwilling to take the requisite oaths and declarations renouncing his Catholicism. C231/10, p. 29.

He died on 6 Oct. 1745 and the title and estate passed on to his childless elder son and heir William Herbert* [987], 3rd marquess of Powis, who at his death in 1748 bequeathed the estate to his Protestant and Whig kinsman, Henry Arthur Herbert* [39], Baron Herbert of Chirbury, who shortly after the 3rd marquess’s death was further made earl of Powis of a new creation. Thus within five years of his death the estates and title of the stalwart Catholic and Jacobite 2nd marquess of Powis passed safely into the hands of a Protestant and Whig branch of the family.