HERBERT, Edward I (c.1591-1657), of Aston, Mont., Peterborough House, Fulham, and St Andrew, Holborn, London

Herbert, who eventually held three of the great offices of state, but who became a hate-figure for parliamentarians, and a controversial contributor to court factionalism, came from a cadet branch of a powerful family. His father was a younger son of Edward Herbert† (d. 1593) of Montgomery Castle, an esquire of the body to Elizabeth I, and brother to Richard Herbert† and Matthew Herbert†, who both took parliamentary seats in the region in the 1580s.36HP Commons 1558-1603. Our MP’s cousins and contemporaries thus included George Herbert†, who represented Montgomery Boroughs in 1624 and 1625, Sir Henry Herbert*, a gentleman of the privy chamber to James I and Charles I, and sometime master of the revels, and the namesake with whom he is often confused, Sir Edward Herbert†, Baron Herbert of Chirbury.37HP Commons 1604-1629.

Much about Herbert’s father is unknown, including the date of his death, although it must have occurred after 1608, the year in which he served as sheriff of Montgomeryshire.38Mont. Colls, v. 483-4; Lloyd, ‘Welsh masters’, 177. Also unclear is the nature of his estate, but his son’s decision to pursue a legal career perhaps indicates that the family’s wealth was limited. After being called to the bar in 1618, Herbert quickly emerged into a position of prominence within public life. He was an active member of the Virginia Company from 1619, and in 1621 secured a seat in the Commons as MP for Montgomery Boroughs, doubtless on the family interest.39Brown, Genesis, 919–20. In the 1624 Parliament, however, he secured a seat, in a by-election, at Downton, thanks to the influence of his cousin the lord chamberlain, William Herbert, 3rd earl of Pembroke. Although Herbert waived the same seat in 1625, in favour of a county seat in Montgomeryshire, he was returned for Downton again in both 1626 and 1628.40HP Commons 1604-1629.

It was also during the 1620s that Herbert rose to eminence within the legal profession, not just because of his links to Pembroke, but also as a friend of Francis Bacon† and John Selden*. Alongside Selden he became Bacon’s literary executor in 1626, and he subsequently acted as Selden’s counsel in 1629.41Brown, Genesis, 919-20. Pembroke remained his most important connection, however, and it was as a member of the latter’s côterie that Herbert helped manage the impeachment of George Villiers, 1st duke of Buckingham, in 1626. That Herbert was aligned to Pembroke’s court faction, rather than to the duke’s more vocal parliamentary critics, is evident from the strength of his connections to the court during the years that followed.

Herbert had secured the post of steward of the Marshalsea by June 1629, and his subsequent advancement owed much to his association with Philip Herbert*, from 1630 4th earl of Pembroke.42CSP Dom. 1633-4, pp. 25, 42. It was doubtless Pembroke who secured Herbert’s nomination as recorder of Salisbury in January 1634, although this position was soon resigned in the wake of his appointments as attorney to the queen, in autumn 1634, and as king’s counsel in the following January.43Wilts. RO, G23/1/3, ff. 381v, 390, 391; CSP Dom. 1634-5, pp. 221, 465, 470; C115/M36/8437; Strafforde Letters, i. 372. Contemporary comments from this period shed fascinating light upon Herbert’s character, and one contemporary claimed that there had been ‘some combustion’ following his promotion to the bench at the Inner Temple. George Garrard* wrote that Herbert was disgruntled to find himself placed at the lower end of the benchers’ table, ‘which he holds some indignity to his place’.44Strafforde Letters, i. 335; Fairfax Corresp. ed. Johnson, i. 293.

In addition to serving as legal counsel for the former lord keeper, and noted Calvinist, Bishop John Williams (Apr. 1633), during the 1630s Herbert was a dutiful servant of the crown.45CSP Dom. 1633-4, p. 3. He served on the committee of lawyers which organised the inns of court masque in response to William Prynne’s* criticism of stage-plays, and in 1637 was one of the legal team which prosecuted Prynne alongside Henry Burton and John Bastwick.46Whitelocke, Diary, 74. Herbert also made a financial contribution to the first Bishops’ War in 1639.47CSP Dom. 1625-49, p. 604. His reward for such loyalty was promotion to the post of solicitor-general in January 1640.48CSP Dom. 1639-40, pp. 365, 413, 478, 527, 536; 1640, p. 89, 121, 131; C231/5, p. 365. It was thus as a prominent member of the court that Herbert was elected to the Short Parliament in 1640. Having been returned at Reading, where he was nominated by the locally born Archbishop William Laud, Herbert opted to sit instead for the pocket borough of Old Sarum, where he had been elected alongside Sir William Howard*, again at Pembroke’s behest.49Reading Recs. iii. 488-9, 492; CSP Dom. 1639-40, p. 604; 1640, pp. 41-2; CJ ii. 4b.

Herbert’s legal status and parliamentary experience ensured that he was named to a number of committees regarding privileges, the tumultuous events in the Commons in 1629, and review of some of the key legal cases of the previous decades, including Ship Money.50CJ ii. 4a, 6b, 8a, 8b. His support for the crown was soon made clear, however, and in a speech on 17 April he responded to a debate regarding grievances in order to ‘put them in mind with what candour his majesty had proceeded in that and all other things, which related to the administration of justice to all his people’. Regarding Ship Money, for example, Herbert claimed that ‘never any cause had been debated and argued more solemnly before the judges’, and he cited comments by George Peard* as being particularly ‘offensive and unwarrantable’.51Clarendon, Hist. i. 175-6.

Herbert’s most important contribution, however, was as a key participant in conferences with the Lords relating to the business of supply.52CJ ii. 12b, 13a-b, 14a, 18a; Harl. 6801, ff. 19-27v, 84-89v; Rushworth, Hist. Collns, iii. 1144-6; Harl. 6411, ff. 47-50v. According to Edward Hyde* – no friend of Herbert’s – the solicitor-general’s speeches on this issue served merely to heighten political tension in the Commons. Hyde later wrote

what transported the solicitor … could not be imagined, except it was his pride and peevishness when he found that he was like to be of less authority there than he looked to be, and yet he was heard with great attention, though his parts were most prevalent in puzzling and perplexing that discourse he meant to cross.53Clarendon, History, i. 181-2.

Hyde’s recollections did not reflect contemporary views of Herbert at court, however, and in the months which followed the dissolution of the Short Parliament, our MP continued his zealous service of the crown in relation to a range of legal matters, including exchequer fines and coat and conduct money.54CSP Dom. 1640, pp. 135, 223, 227, 248, 272, 561; 1640-1, pp. 117, 335, 338, 342, 357.

Herbert returned to Westminster for the Long Parliament, once again representing Old Sarum, and immediately resumed his position of prominence within the House.55CJ ii. 20b, 27b, 28a; D’Ewes (N), 37, 534. Although he approved of the decision to summon Burton and Prynne from the remote prisons to which he had helped consign them, Herbert’s record once again indicates strong support for the crown on issues such as the Scots, financial supply, and prosecution of Thomas Wentworth†, 1st earl of Strafford.56D’Ewes (N), 5. Herbert’s role, indeed, appears to have been to resist those reformers in the Commons who sought to damn the financial and political policies of the previous decade. Named to the committee to consider the attainder of Strafford, he sought to block moves by Oliver St John* to secure access to key legal documents, on the grounds that ‘he would first know if ever there hath been the like done’.57CJ ii. 31b; D’Ewes (N), 45. His subsequent involvement in committees regarding the evidence against Strafford, and regarding the examination of witnesses, was almost certainly driven by an attempt to derail the proceedings.58CJ ii. 39a, 39b; D’Ewes (N), 84, 545. The same motivation may also explain his nomination to a committee regarding the property of subjects, and the legitimacy of recent taxes and impositions, and he made clear his view that Ship Money ought not to be declared illegal.59CJ ii. 38a, 50b; D’Ewes (N), 116.

Herbert’s interest in financial matters was clearly driven in part by the need to raise money in order to finance the army in the north, and to reach a settlement with the Scots, and during November and December 1640 he was nominated to, and often chaired, a number of committees on these related issues.60CJ ii. 27b, 31b, 34a, 45a; D’Ewes (N), 31. Most important among these was the grand committee regarding supply, which he chaired during the opening months of the session.61CJ ii. 31b, 34a, 36b; D’Ewes (N), 43-4, 46, 53, 66, 110, 134, 142, 538.

Herbert’s last recorded appearance in the Commons was on 19 January 1641, when he made a speech against the bill for annual parliaments, arguing that it ‘took away from the king one of the supreme prerogatives of his crown’.62CJ ii. 60a; D’Ewes (N), 263. His withdrawal from the House was necessitated by his appointment to the position of attorney-general, something which had been rumoured since July 1640, and which brought him an assistant’s place in the House of Lords.63CSP Dom. 1640, p. 502; 1640-1, p. 439; CJ ii. 75a; D’Ewes (N), 299; C231/5, p. 426. With the benefit of hindsight, and as one of his implacable enemies, Hyde claimed that Herbert was ‘awed and terrified’ by the mood in the Commons, and that he ‘longed infinitely to be out of that fire’.64Clarendon, Hist. i. 279-80.

Herbert’s activity during the months that followed is difficult to monitor, although his service as messenger between the two Houses suggests that he remained concerned with proceedings against Strafford, and with the treaty being negotiated with the Scots.65D’Ewes (N), 374, 393, 434, 460, 473, 489; CSP Dom. 1640-1, pp. 570, 592. In December 1641, however, he was involved in debates regarding the impressment bill, and the king’s power to raise forces for the defeat of the Irish rebellion. A rather grudging compliment was paid to him by Hyde, who recalled that Herbert ‘took the courage (as he should often have done in other cases) that he might be heard on the king’s behalf, before they consented to a clause so prejudicial to the king’s prerogative’.66D’Ewes (C), 308; Clarendon, Hist. i. 439. As political tension rose in London during late 1641, Herbert was also involved in questioning various citizens regarding provocative rumours circulating in the capital, regarding the king’s intentions to take action against his opponents.67D’Ewes (C), 320.

Herbert’s most important contribution to political life during these crucial weeks related to precisely this issue, and on 3 January 1642 he was responsible for presenting to Parliament the impeachment of the ‘Five Members’, according to instructions received from the king.68Nicholas Pprs. ii. 62; Eg. 2546, ff. 20-1; Clarendon, Hist. i. 479; CSP Dom. 1641-3, pp. 236, 239, 242, 244; D’Ewes (C), 377, 388n.; PJ i. 4, 5, 12. Herbert’s role in so momentous an incident inevitably brought down the wrath of the ‘fiery spirits’ upon him, and by 13 January the Commons had prepared a series of questions for him to answer, as a preliminary deciding on his punishment.69PJ i. 61; Clarendon, Hist. i. 517-18. To these interrogatories Herbert responded by saying that

he knew not what the ground was of them, nor what witnesses could prove them, nor ever heard or knew of the testimony of any witnesses concerning them, nor did himself draw them or know who drew them, but that the king himself delivered them to him and commanded him to prefer them unto the Lords’ house.70PJ i. 56; Rushworth, Hist. Collns, iv. 488-9.

Such a response posed a tricky problem for the Commons, who were not prepared to accept the king’s personal culpability. Thus, Members like William Strode* – one of those who had been impeached – claimed that Herbert was ‘in the head of the conspiracy’.71PJ i. 81-4, 87-8; Clarendon, Hist. i. 515; Rushworth, Hist. Collns, iv. 489-90. Amid continuing speculation as to the identity of the impeachment’s author, articles against Herbert were eventually presented to the Commons on 1 February.72PJ i. 182, 212-13, 220-3, 245-6, 248, 251; CJ ii. 407b. As his own impeachment was debated in the weeks that followed, William Pierrepont* claimed that Herbert had tried to dissuade the king from taking action against the Five Members, but Strode once again insisted that Herbert had been responsible for contriving the charges, and that he became ‘another man’ only after witnessing the failure of the plan. Herbert’s old friend Selden likewise expressed his opinion that the attorney general could be charged for his role.73PJ i. 315, 356-9, 363, 366.

The charges against Herbert, which were sent to the Lords on 14 February, were later described by Hyde as ‘a monument of their power, that … no man should presume to obey the king in the like command’.74Clarendon, Hist. i. 573. Herbert’s defence team (including Sir Thomas Gardiner*) protested that he did ‘not at all advise or contrive the said articles, or ever knew or heard of any of them until he received them from his majesty’s hands’.75CJ ii. 429, 449; PJ i. 372, 380, 440-1, 445-6; LJ iv. 582b, 603b-4b; HMC 5th Rep. 9. Although Herbert was bailed by the Lords, the Commons pressed on with their impeachment bill, which was eventually presented to the House on 8 March amid disputes over whether or not to hear Herbert’s counsel on matters of fact, or even matters of law. The momentum against Herbert continued even in the face of the king’s letter to Lord Keeper Littleton (Edward Littleton†), in which he excused Herbert, and assumed personal responsibility for the proceedings against the Five Members.76LJ iv. 604b, 623b-624a, 634-7; CJ ii. 452b, 462, 470; PJ i. 476, 493, 505; ii. 7, 11, 15-16; HMC 5th Rep. 10; Rushworth, Hist. Collns, iv. 493. Hyde, who later suggested that the severity of the proceedings against Herbert was ‘as extraordinary and as distant from the rules of justice, at least of practice, as anything that then happened’, argued that the king’s letter ‘rather hastened the trial, and sharpened the edge that was before keen enough against him’.77Clarendon, Hist. ii. 23-4.

The case for the prosecution was presented to Parliament by John Wylde*, who accused Herbert of ‘advising and contriving’, and of ‘publishing and exibiting’ the articles. He sought to negotiate the king’s claim to have instigated the proceedings by asserting that, as with a libel, the publisher ought to be considered the author or contriver, adding that contriving without publishing was ‘but an inception of an offence, the publishing is the consummation of it, and therefore so much the more heinous’. Wylde also claimed that ‘the publisher is the grand offender, he blows the coals and the trumpet’. Addressing Herbert’s excuse, ‘that is, the king’s command’, Wylde maintained that ‘this adds more to his offence, a foul aspersion upon his majesty, and wrong to his gracious master, for he could not but know that the king’s command in things illegal is utterly frustrate, and of no effect’. He concluded the prosecution’s case by claiming that the effects of Herbert’s action were likely to be ‘bloodshed, horror, devastation, and confusion’.78LJ iv. 635a-b; HMC 5th Rep. 11.

Herbert’s defence was hampered by a division between the two Houses over whether or not to permit his case to be made by counsel rather than in person, and although it was finally decided to allow his representation by lawyers, ‘this reprehension and threat of the Commons’, as Hyde described it, prompted both Sir Thomas Bedingfield* and Sir Thomas Gardiner to refuse to ‘meddle further in the business, or to make any defence for the attorney’, even though it meant brief imprisonment in the Tower for contempt (9 Mar.).79LJ iv. 636a-b, 639a-b; PJ ii. 19; Clarendon, Hist. i. 24-5. Hyde claimed that, as as result, witnesses looked upon ‘the justice of Parliament with less reverence to see the subject, between the contradictory and opposite commands of both Houses… punished and imprisoned for not doing by one [what] he was straightly inhibited by the other not to do’.80Clarendon, Hist. i. 25. Moreover, the two replacements nominated by Herbert sought to be either excused or granted more in which time to prepare, and the case for the defence was eventually delivered instead by more junior lawyers (John Herne and Chaloner Chute I*) on 12 March.81LJ iv. 640b-642b; Rushworth, Hist. Collns, iv. 490-1. The nub of their case was that Herbert was merely fulfilling the ‘duty of his place’, and Hyde later wrote of ‘the undeniable reasons of his defence’, claiming that ‘the attorney was understood by all men who understood the rules and practice of Parliament to be absolutely absolved from that charge’.82Clarendon, Hist. ii. 25-6.

Herbert’s sentence was debated by the Lords on 15 March, amid some controversy. Hyde later observed that the only claim made in response to Herbert’s defence was ‘the inconvenience and mischief which would attend a Parliament if the Members might be accused of high treason without their consent’. He also claimed that the matter was only pursued – ‘with all imaginable sharpness and vehemence’ – by sections of the Commons, and by ‘those peers who were of that party’, and that Herbert was ‘much shaken with that torrent of malice and prejudice which the House of Commons seemed now to threaten him with’.83Clarendon, Hist. ii. 26. Although the Lords were unanimous that he had committed a crime, only a minority of 14 future parliamentarian peers wanted him to lose his job, to pay a fine to the king, and to pay damages to the accused members. A minority of just three wanted him to be committed to the Tower.84LJ iv. 645a-b; HMC 5th Rep. 13.

Dissatisfied with the moderation shown by the Lords, the ‘fiery spirits’ in both Houses ensured that the upper House passed judgment for a second time in mid-April, ‘contrary to all course and practice of Parliament’, according to Hyde.85Clarendon, Hist. ii. 27. They may have been particularly incensed by Herbert’s recent involvement in drafting the king’s bill for settling the militia.86PJ ii. 153, 169; CJ ii. 527; LJ iv. 717a; Clarendon, Hist. ii. 34, 42. On 18 April there was an order for the removal of Herbert from his position in Parliament, and from all offices other than that of attorney-general, and for his committal to the Fleet prison.87LJ v. 4b-5a, 9b, 11b-12a; CJ ii. 539; PJ ii. 209, 211; Rushworth, Hist. Collns, iv. 493-4; HMC 5th Rep. 19, 21. His first plea to be released, on 29 April, was refused, but on 11 May the Lords granted him leave to travel to any of his houses within a day’s journey of London, although he was prohibited from entering either London or Westminster.88LJ v. 30a, 58b; HMC 5th Rep. 19, 21, 22. The Lords subsequently gave the Five Members leave to prosecute Herbert at law, but while the Commons subsequently assigned them counsel, it is unclear whether formal proceedings were ever instigated.89LJ v. 75a; CJ ii. 578a, 579a. By the first week of August 1642 Herbert was back at the royal court, from where he may have conspired in the publication of an account of his response to Parliament’s case against him.90CSP Dom. 1641-3, pp. 367, 496; The Answer of Sir Edward Herbert (1642) (E114.2).

Once at Oxford, Herbert continued to serve the king in his capacity as attorney-general, but he probably soon became embroiled in the factionalism which bedevilled the royalist capital.91CCSP i. 243; Eg. 2980, f. 1. Although much of the evidence of such tension springs from the account written somewhat later by Hyde, whose judgment may have been coloured by tension between himself and Herbert in the 1650s, it is likely that there was at least some truth to his version of events. Hyde claimed that during a conference between the two men in 1643, over a draft royal proclamation dissolving the Long Parliament, Herbert was ‘most offended with the preamble, wherein it was declared that the king neither could or intended to break the Parliament, which was so contrary to what he had infused into the king’.92Clarendon, Life, i. 210. Hyde also mocked Herbert’s own drafting skills, claiming that on one occasion he presented the king with a declaration ‘in such a manner, that he no more understood what the meaning of it was, than if it were in Welsh … only he was very sure it contained nothing of the sense he had ever expressed to him’.93Clarendon, Life, i. 212. Charles apparently described the document as ‘so rough, perplexed, and insignificant that no man could judge by it, or out of it, what the writer proposed to himself’. Hyde even claimed that the king ‘never after had any esteem of him’.94Clarendon, Life, i. 212. Hyde also provides a valuable pen-portrait of Herbert, whom he described as

a man very unlike any other man; of a very good natural wit, improved by conversation with learned men, but not at all by study and industry, and then his conversation was most with men, though much superior to him in parts, who rather admired than informed him, of which his nature (being the proudest man living) made him not capable, because not desirous.

According to Hyde, furthermore, Herbert’s ‘greatest faculty was, and in [this] he was a master, to make difficult matters more intricate and perplexed, and very easy things to seem more hard than they were’.95Clarendon, Life, i. 212-13. He would also repeatedly accuse Herbert of profound vanity.96CCSP ii. 197, 214; CSP iii. 163.

What makes at least some of Hyde’s account plausible is evidence demonstrating the strength of Herbert’s connections to the faction around Prince Rupert, from at least the spring of 1644.97Add. 37157, f. 56; Mems. of Prince Rupert ed. Warburton, ii. 407-8, iii. 121. Rupert certainly relied upon Herbert’s skill in argument in order to secure what he wanted from the king.98Mems. of Prince Rupert, iii. 73; Staffs. RO, D(w)1778/I/i/45. Moreover, Herbert’s involvement in court faction, and his association with Rupert, probably explains his removal as attorney-general in November 1645, following the prince’s fall from grace. Herbert’s dismissal had been mooted since September, when Sir Edward Nicholas reported to the king that he was ‘much afflicted at it, being … by sentence of parliament for obeying your majesty’s comments rendered incapable of any other place than that he hath’. Although Herbert apparently professed himself willing to ‘deliver up his place if such be your unalterable pleasure’, he could not see how he would be able accept the proposed post as lord chief baron of the exchequer.99CSP Dom. 1645-7, p. 110. Charles dismissed Herbert’s line of reasoning, and may even have offered him the post of lord keeper, but Herbert evidently refused, and upon being discharged as attorney general, was made a serjeant-at-law instead.100Evelyn Diary, ed. Wheatley, iv. 178-9; C231/3, pp. 157-8.

Herbert’s whereabouts and activity during the next few years are largely unknown, although Parliament clearly continued to view him with suspicion. In September 1644 he had been named as one of those who were to be excluded from pardon, albeit only after a division, and at the insistence of more hardline elements within the Commons.101CJ iii. 636a, 639; Harl. 166, f. 125v. Thereafter, he remained a proscribed individual each time peace proposals were discussed. In the spring of 1646 it once again took a division to renew this decision, although on this occasion his most vocal critics were led by the Presbyterians Denzil Holles* and Arthur Annsesley*.102Harl. 166, f. 152v; CJ iii. 687a; CJ iv. 471b; Rushworth, Hist. Collns, vi. 313; TSP i. 80; LJ x. 549a. Herbert’s estate appears to have been unsequestered, however, even though Parliament had sought to locate his goods, and even though there is no evidence of his having paid his assessment of £1,500.103CCAM 487, 681; CCC 92, 583.

For all of his subsequent animosity towards Herbert, Hyde expressed his hope that the former attorney-general would join the exiled royalists in Jersey in December 1646, but there is no evidence that Herbert left England until 1648, when he fled to sea with Rupert, upon whom he was supposed still to have had ‘the greatest influence’.104CCSP i. 348; Clarendon, Hist. iv. 360. According to Hyde, Herbert remained a divisive force, and a major influence behind court factionalism. He claimed that, ‘of all men living’, he was

the most disposed to make discord and disagreement between men, all his faculties being resolved into a spirit of contradicting, disputing, and wrangling upon any thing that was proposed, and having no title or pretence to interpose in councils, and yet there being no secret in the debates there, he found it easy to infuse into Prince Rupert, who totally resigned himself to his advice, such arguments as might disturb any resolution.105Clarendon, Hist. iv. 360.

Nevertheless, Hyde also provided an example of Herbert’s inconsistency and pragmatism. Within an hour of Hyde’s arrival at The Hague in September 1648, alongside Francis Cottington†, 1st Baron Cottington, Herbert apparently ‘congratulated their arrival’, and ‘told them how much they had been wanted and how much Prince Rupert longed for their company’. This obviously surprised Hyde, since Herbert ‘had never loved either of them’.106Clarendon, Hist. iv. 372.

Prince Charles apparently reappointed Herbert as attorney-general in 1649, but the effect of his arrival on the continent was to foment divisions between the exiles. He and Rupert led ‘a combination’ designed to ‘undervalue’ Lord Hopton (Sir Ralph Hopton*) in the eyes of Prince Charles, ‘upon former grudges’.107Clarendon, Hist. iv. 374. Hyde also blamed Herbert for having ‘industriously cultivated’ a prejudice in Rupert against Sir John Culpeper*, saying that Herbert ‘did perfectly hate all the world that would not be governed by him’ and that ‘every meeting in council was full of bitterness and sharpness between them’.108Clarendon, Hist. iv. 407, 409. Hyde considered Herbert to be ‘the unfittest man living to be trusted’ with secrets, ‘having always about him store of oil to throw upon such fire’.109Clarendon, Hist. iv. 408. Herbert’s goal was apparently to secure for Rupert control of the royal fleet, and the two men formed part of a group – ‘the swordsmen’ – which can be distinguished from both the ‘Louvre group’ and the Hyde-Nicholas group. The swordsmen opposed alliance with either the Scots or the English Presbyterians, although they were ‘united only by personal jealousies of the men in the other two’.110Clarendon, Hist. iv. 417; Underdown, Royalist Conspiracy, 11. According to Sir John Berkeley*, writing in the spring of 1650, ‘the opposing an imaginary power which the queen has with the king is the strongest link which unites these [men]’.111CCSP ii. 50. Sir Richard Browne* clearly felt that Herbert had become ‘alienated from us’ out of opposition to supposed Presbyterian sympathies among the exiles.112Nicholas Pprs. i. 270.

For many royalist exiles, therefore, the overriding concern was that the swordsmen would secure influence over Charles Stuart and James Stuart, duke of York, with the latter of whom Herbert was reported to be particularly intimate in late 1650 and early 1651.113Nicholas Pprs. i. 173-4, 195, 198, 228, 230, 249-50; CSP Dom. 1650, pp. 236, 482; Clarendon, Hist. v. 162. It was of this period that Hyde wrote another account of Herbert, in which he claimed that ‘they who concurred in nothing else were equally severe against the attorney, as a madman, and of that intolerable pride, that it was not possible for any man to converse with him’. Hyde went on to say that

he as frankly reproached them all with being men of no parts, of no understanding, no learning, no principles, and no resolution, and was so just to them all as to contemn every man of them alike. And in truth he had rendered himself so grievous to them all, that there was no man who desired to be in his company, yet by the knack of his talk which was the most like reason without being it, he retained still too much credit with the duke, who being amused and confounded with his positive discourse, thought him to be wiser than those who were more easily understood.114Clarendon, Hist. v. 169.

By September 1651 Nicholas had begun to express concern that Herbert, on behalf of the duke of York, had made his peace with the queen, from whom he had previously been estranged, and it was suggested that he was ‘very much in her majesty’s confidence’.115Clarendon, Hist. v. 225; Nicholas Pprs.i. 265. About the same time Herbert may also have sought to draw closer to Hyde.116CCSP ii. 106, 107, 109; Nicholas Pprs. i. 272, 277. By early 1652, however, Herbert was probably in league with Hyde’s enemies, notably Robert Long I*, the former secretary of state to Prince Charles, who looked to him to support his accusations against the lord chancellor.117CCSP ii. 115. In February, indeed, Nicholas advised Hyde that Herbert was ‘no more your true friend than mine or any man’s else, and I much doubt whether his nature be capable of being a true friend’.118Nicholas Pprs. i. 287. As a result, Hyde and Nicholas feared the growing influence which Herbert appeared to have at court, as he attempted to secure appointment as a privy councillor, or even lord keeper, and the impact which this would have upon the court. Nicholas predicted that ‘he will make all the council mad’, and noted the incompatibility of Herbert and Sir John Culpeper.119Nicholas Pprs. i. 289, 291; CCSP ii. 140.

By the summer of 1652 Nicholas’s suspicions were heightened further by the new-found friendship between Herbert and the group around Charles Gerard, 1st Baron Gerard, which was something he professed to ‘marvel at’. He also feared that Rupert’s friends would work to advance his position at court, even though he doubted both Herbert’s popularity and his ability to ‘gain much on the affections of many men’.120Nicholas Pprs. i. 305. As he observed the growing tension between Herbert and Hyde in the months which followed, Nicholas suspected that this represented more than merely the ‘emulation’ which ‘always appears between all men that have been bred together at the law’, and that Herbert’s professions of friendship towards Hyde were insincere.121Nicholas Pprs. i. 306, 315; CCSP ii. 150. Such suspicions regarding Herbert appeared to be confirmed in early November, when it became apparent that he was observed to ‘sedulously apply himself’ to ‘Lord Jermyn [Henry Jermyn*] and his faction’, as well as to Sir John Berkeley, ‘of whom he, I am sure, had as ill an opinion as it is possible for one to have of another’.122Nicholas Pprs. i. 317; CCSP ii. 154, 155; CSP iii. 111. The friendship with Jermyn clearly came as a surprise to Hyde, who wrote that there had previously been ‘greater show of animosity’ between the two men ‘than between any two of the nation who were beyond the seas’. Hyde, who claimed that Herbert was ‘of a rude and proud nature’, and who had ‘declared publicly that he would have no friendship with any man who believed the other to be an honest man’, suddenly developed ‘a great friendship’ with his former enemy.123Clarendon, Hist. v. 321.

In December 1652 Nicholas told Hyde of his belief that Herbert was working to ensure that the most powerful individuals at court would ‘not think well of you or me, or of any other who have other thoughts or opinions than he would have us’. Nicholas duly resolved ‘for quietness sake, to be of his opinion (if he can but tell me what it is) be it right or wrong, and so must the king be also by his leave, or else he shall have little quiet’.124Nicholas Pprs. i. 320, 321. At much the same time, Hyde wrote that Herbert ‘lives by the contradiction of all others’ opinions’, and noted the antipathy which he displayed towards his own friends, such as Christopher Hatton†, 1st Baron Hatton, and Henry Wilmot*, now 2nd Viscount Wilmot.125CCSP ii. 161, 165, 172; CSP iii. 124. Herbert’s close relations with Rupert provided another source of tension between himself and Hyde, not least because Hyde felt that Herbert’s ‘government’ of the king’s nephew would do more harm than his enemies could ever achieve.126Mems. of Prince Rupert, iii. 348-9; CCSP ii. 178, 214, 318; CSP, iii. 145, 220; Clarendon, Hist. v. 321.

The worst fears of Hyde and Nicholas – that Herbert would secure high office again – were realised in April 1653, when he was made lord keeper, after months of speculation.127Nicholas Pprs. i. 320; (Cam. Soc. ser. 2, l) 8; CCSP ii. 187, 191. This was apparently effected by the queen, even though the king ‘knew the man very well and had neither esteem nor kindness for him’, and Herbert’s friendship with Henrietta Maria had doubtless developed from his association with Jermyn.128Clarendon, Hist. v. 322. The queen had previously ‘shown a greater aversion from him than from any man … but now she commended him to the king as a wise man, of great experience, and of great interest in England’.129Clarendon, Hist. v. 321.

Hyde later reflected that Herbert was ‘wonderfully delighted’ with his promotion ‘and for some time lived well towards everybody’, even though, ‘as to anything of business, he appeared only in his old excellent faculty of raising doubts and objecting against any thing that was proposed, and proposing nothing himself, which was a temper of understanding he could not rectify’.130Clarendon, Hist. v. 322. In the weeks and months that followed, however, rumours abounded regarding Herbert’s friends and enemies, his ambition for Rupert, and his willingness to plot against Hyde.131CCSP ii. 199, 213, 222, 224, 228, 231, 237, 255, 275, 286; CSP iii. 189-90; Nicholas Pprs. ii. 33. It was apparent that Herbert and Robert Long were in league against Hyde by December 1653, and although the lord keeper ‘had in all times inveighed against Mr Long’s want of fidelity’, he and Jermyn nevertheless ‘agreed that there could not be a better expedient found out to lessen the Chancellor’s credit’ than his restoration as secretary of state.132Nicholas Pprs. ii. 37; Clarendon, History, v. 324. Faced with an alliance between Herbert, Jermyn, Gerard, Rupert and the queen, Hyde’s only consolation lay in the support of James Butler, marquess of Ormond and of Charles Stuart, the latter of whom was reported to be ‘most unsatisfied with the lord keeper whom he holds most unfit for his place’.133Nicholas Pprs. ii. 39, 40, 42, 50, 51, 53-4; CCSP ii. 295. As the dispute between Long and Hyde emerged into the open in early 1654, Charles chastised Herbert for his ‘partial conning questions’, and Hatton gloated that ‘this little keeper’ had ‘rendered himself very contemptible’.134Nicholas Pprs. ii. 49, 51; CCSP ii. 302; Clarendon, Hist. v. 325, 328.

Herbert’s next move did little to enhance his reputation at court, because the plans which he and Lord Gerard promoted to incite a popular rebellion among London’s apprentices, and then to assassinate Oliver Cromwell*, proved so inept, not least because they were undertaken without the co-operation of the Sealed Knot.135TSP ii. 162, 183, CSP iii. 207; CCSP ii. 335, 361; Add. 4180, f. 110. The discovery of the ‘Gerard plot’ can only have weakened the lord keeper in the eyes of Charles and his brother, and the king apparently made clear his opinion that this faction had ‘so behaved themselves to him, that they should never more have his trust, nor his company, if he could’. Charles failed to ask Herbert to accompany him on his planned journey to Germany, and feeling himself to have been dishonoured, Herbert resigned as lord keeper, much to the annoyance of the queen (June 1654).136CCSP ii. 340, 361, 365, 370, 377; TSP ii. 312, 322, 324; Clarendon, Hist. v. 339; CSP iii. 246.

Thereafter, Herbert played little role in the politics of the exiled court, although rumours persisted for a while of his involvement in plots with Henrietta Maria, Jermyn, Berkeley and Gerard to make Rupert head of the ‘swordsmen’, to undermine Henry Stuart, duke of Gloucester, and to criticise ‘the king’s person and affairs’.137Nicholas Pprs. ii. 90, 91, 104, 123, 127. Hyde reflected that Herbert endeavoured to ‘inflame’ Rupert against Charles Stuart, ‘as well as against most other men’, and argued that his rival believed that Rupert ‘did not give evidence enough of his concernment and friendship for him except he fell out with everybody with whom he was angry’.138Clarendon, Hist. v. 338. From late 1654, however, Herbert lived ‘very privately’ in Paris. He mourned the death of his old friend Selden, whom he apparently ‘adored’, and was rarely seen in public other than at the Palais Royal, ‘in the arms or about the neck of Lord Jermyn’.139Nicholas Pprs. ii. 150, 155, 172. He also refused to worship at Sir Richard Browne’s* chapel (which used Prayer Book rites), and was rarely mentioned again by any of the exiles until his final illness in December 1657.140Nicholas Pprs. ii. 315; CSP Dom. 1655, p. 348; Nicholas Pprs. iii. 286; iv. 29. Herbert died in poverty, and with few friends, on 18 December 1657, and was buried with the minimum of ceremony in the protestant burial ground in the Faubourg St-Germain. Jermyn may have been one of the few leading courtiers to attend the funeral.141Nicholas Pprs. iv. 32; CSP Dom. 1657-8, pp. 232, 253, 288; Clarendon, Hist. vi. 52; TSP vi. 724.

After the Restoration Herbert’s widow was granted financial assistance by Charles II, in the form of the new years’ gifts to the crown for three years.142Eg. 2542, f. 428v, 435; HMC 7th Rep. 135. Herbert’s three sons all sat in Parliament after 1660: Charles Herbert† died in the service of William III in Ireland in 1691; Sir Edward Herbert† became chief justice of the common pleas, and Arthur Herbert†, the noted admiral, was created earl of Torrington in 1689.143HP Commons 1660-1690.