I'm With Her-bert: The Life of a 17th Century Politician

Hello everyone and happy almost Thanksgiving! I am excited to go home, to spend some time with my family, and, most importantly, to sleep. As for my spreadsheets, I hope to finish up the last one of this batch on the train ride home. That's right everyone. I am on the 7th and last royal house spreadsheet...at least until I get the next set of names. I am currently working on James, Duke of York's house. He had 29 pages worth of household members....oh how I miss the days of the Duke of Cambridge. He only had three people to his house....that may have something to do with his death as a child . . . but at least that made it easier on me!

Anyway, in the spirit of my finishing up the Duke of York's household, I have picked yet another person who worked under him to talk about today. So, everyone please give a warm welcome to Sir Edward Herbert, Jacobite Earl of Portland.

Unfortunately, I could not find any pictures of Edward Herbert. So please enjoy this photo of Inigo Montoya from The Princess Bride.

Edward Herbert was born on June 10, 1645, second surviving son of his parents. As a child, Herbert and his mother suffered through poverty after his older brother's death in 1657. After the Restoration their fortunes did improve however and Herbert entered Winchester School in 1661. He then graduated from New College, Oxford in 1665 and in 1669 he entered the Middle Temple which, to explain as simply as possible, was sort of like being in a super cool, honorable club. He looked for a career in Ireland and was appointed as chief justice of Tipperary and as the king's attorney-general of Ireland in 1677. However, it is said that Herbert was resolved to settle at Westminster Hall, so he eventually returned to England where he became engaged in several royal appointments. In October 1683 he was appointed chief justice of Chester and solicitor-general to the Duchess of York. On February 10, 1684 he was knighted and then in 1685 he acted as attorney-general to the duke of York. Apparently working within the court came pretty natural to ole Herbert.


In April of 1685, Herbert was elected to parliament, but his career was quite brief. During the reign of James II, when James went from Duke of York to King of England, Herbert was appointed to the privy council. In October of 1685 Herbert also replaced Justice George Jeffreys as chief justice on the king's bench. Herbert was apparently encouraged by Jeffreys to "execute the law to the utmost of its vengeance upon those that are now known . . . by the name of whigs'". So, Jeffreys definitely didn't like Protestants, which may have been unfortunate for him as most of the English population was Protestant during this time. Herbert looked back on these times as quite difficult and claimed that he even tried to decline the post at first. However, with Jeffrey's and the king's urging, he had to accept.

Right now it appears that Herbert didn't do much except involve himself in heavy political and lawful jobs. Yet this pressure to act on behalf of the Catholic Tories as chief justice gives hint to the political tensions at the time. James must have been anxious to hire someone who he thought would not side with the Protestant Whigs, as they were becoming more disgruntled with his Catholic occupation of the throne.

Up to this point Herbert seemed to have a relatively quiet life. Yet as soon as he was given the post of Lord Chief Justice, he was thrown into controversy. In the famous Godden v. Hales, Herbert had to decide whether or not to convict a man named Sir Edward Hales who had apparently violated the provisions of the Test Act. For those who don't know, the Test Act was a law that made a person's eligibility for public office dependent on his religion. Hales, a Catholic, had been appointed lieutenant of the Tower of London and his coachman, Arthur Godden, brought action against him. It comes as no surprise that it would have been preferred for a Protestant to take such a position. When Hales appealed to the king's bench, he claimed that James II had granted him dispensation under the great seal, freeing him from the law. The outcome of this trial was critical, for it would show how far the king's claim on power could go and how much he could dispense with parliamentary law. Right before the trial, James infamously purged four judges who were hostile to his cause. Although this was quite the unpopular move, it was well within his power to do so. Herbert presided over this important trial and the day after the case was heard, on June 17, 1686 Herbert delivered a verdict of eleven to one in favor of Hales and the crown.

This decision was quite astounding to many people, even by Herbert's nearest friends. By choosing the side of the crown, Herbert and the royal court were essentially saying that the king's decree can override parliamentary decisions. There were angry denunciations of this decision published and Herbert began to fall under "the greatest infamy and reproach". In order to defend himself, Herbert published a defense of his decision, arguing that the court had ruled in favor of the king's power to dispense with laws in individual cases, not laws entirely. Although this decision was quite shocking to many, especially Whigs, Herbert's distinction between dispensing and the suspending power caused him to become quite popularized. There were even rumors he would replace Jeffreys at his new post of Chancellor. This prominence was not to last long for Herbert though. As if to prove that he was not always inclined to side with the king on all decisions, Herbert now began to make decisions against the king. He voted for the acquittal of a Bishop and denied that the king had the authority to execute deserters from his army during peacetime. These decisions caused his demotion to the court of common pleas.

In the coming year, Herbert had little part in the collapse of James's reign, when he was overthrown by William of Orange and the Whig party. However, this still left him in a dangerous position since his court decision in Godden v. Hales put many Whigs against him. By December 11, 1688 Herbert fled London and spent the remainder of his life at James's exiled court at St. Germain-en-Laye and was created earl of Portland under Jacobite peerage in 1690. He was appointed James's chancellor but as he was a Protestant, he could not sit on the council. Though he was popular with the Jacobites, James always kept him at arm's length. Herbert eventually died of apoplexy at St. Germain on November 5, 1698.

Herbert's life is interesting, for he never seemed to fully commit himself to either Whig or Tory ideologies as most politicians did. Herbert cared more about upholding the law than picking sides. However, in this sort of political climate, if one didn't pick a side, that was as good as being the enemy to both. So even though Herbert was a Protestant, he still had to flee the country when James was overthrown. Yet even in James's exiled court, Herbert could never really move to higher ranks because of James's obvious distrust of him and his Protestantism. Herbert's life shows that picking a side was crucial to one's status in society in 17th century England. I find this especially interesting when comparing this to today's political climate. It seems as if one can only be a Liberal or a Conservative, and it is imperative that one side hate the other. Being in between both parties just shows weakness and stupidity. I guess Herbert's case shows us that even though hundreds of years have lapsed between then and now, the importance of one's political views has barely changed at all.

Jeffrey R. Collins, ‘Herbert, Edward , Jacobite earl of Portland (1645–1698)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Oct 2005 [http://www.oxforddnb.com/view/article/13023, accessed 20 Nov 2016]