Edward Herbert (judge)
Encyclopedia
Sir Edward Herbert titular Earl of Portland
, was an English
judge who served as Chief Justice of the King’s Bench
during the reign of James II
.
to Charles II
, and his wife, Margaret, daughter of the Master of Requests
, Thomas Smith
of Abingdon
, Berkshire
(now Oxfordshire
) & Parson's Green, Middlesex
, and widow of Thomas Carey of Sunninghill Park
, Berkshire. He was brother of Arthur Herbert, 1st Earl of Torrington
and became a scholar of Winchester
in 1661, aged 13. He was elected probationer fellow of New College, Oxford
, in August 1665, and, having graduated B.A. on 21 April 1609, entered the Middle Temple
, where he was called to the bar. He practiced for some years in Ireland, and was there created king's counsel on 31 July 1677.
on 25 Oct. 1683, and on 10 February in the following year was knighted at Whitehall. In January 1684-5 he succeeded Sir John Churchill as Attorney General
to the Duke of York
, on whose succession to the crown he was appointed Attorney General
to the queen
. On 15 April he was returned to parliament for Ludlow
. Like his father he had the highest notions of the royal prerogative
, which much helped his advancement. On 16 Oct. 1685 he was sworn of the Privy Council, and on the 23rd he was called to the degree of Serjeant
, giving rings with the significant motto 'Jacobus vincit, triumphat lex,' and the same day took his seat as Chief Justice of the King's Bench
in succession to Jeffreys
, who had been appointed lord chancellor. Jeffreys
characteristically exhorted Herbert on this occasion to 'execute the law to the utmost of its vengeance upon those that are now known, and we have reason to remember them, by the name of whigs
,' and 'likewise to remember the snivelling trimmers,' because 'our Saviour Jesus Christ says in the gospel that they that are not for us are against us '.
. Thereupon his coachman, Arthur Godden, brought a collusive action against him in the king's bench for the prescribed penalty of £500, to which Hales demurred, pleading a dispensation under the great seal
. The case was argued before Herbert, who delivered formal judgment as follows : ' (1) That the kings of England are sovereign princes ; (2) that the laws of England are the king's laws; (3) that therefore it is an inseparable prerogative in the kings of England to dispense with penal laws in particular cases, and upon particular necessary reasons ; (4) that of these reasons and these necessities the king himself is the sole judge.' The plaintiff was accordingly nonsuited
. The judgment occasioned general consternation in the country, and the judges were treated with scant respect on circuit. It was impugned as bad in point of law by Sir Robert Atkyns (1621–1709) in a tract entitled ' An Enquiry into the Power of dispensing with Penal Statutes.' Herbert replied with 'A Short Account of the Authorities in Law upon which judgment was given in Sir Edward Hales's case,' in which he argued that 'whatever is not prohibited by the law of God, but was lawful before any act of parliament made to forbid it, the king by his dispensation granted to a particular person may make lawful again to that person who has such dispensation, though it continues unlawful for everybody else.' Atkyns rejoined, and William Atwood
, a barrister, also examined Herbert's vindication with much learning and ability.
, and of which Jeffreys
was the president. Having, however, refused to abet the king's design of introducing martial law by declining to order the execution of a deserter from the army, he was transferred to the chief-justiceship of the common pleas
in April 1687, being succeeded in the king's bench by the more compliant Robert Wright
. He still retained his place on the ecclesiastical commission, but gave further offence to the king by expressing the opinion that his proceedings in the case of Magdalen College
could not be legalised by any exercise of his dispensing power, and by voting against the inhibition of the recalcitrant fellows from the exercise of their clerical functions.
Herbert followed him to France and afterwards to Ireland, and was accordingly excepted from the bill of indemnity and included in a Bill of attainder
. The latter bill lapsed owing to an early prorogation, but Herbert's estates were sequestrated, the royal palace of Oatlands
, Weybridge, Surrey, which had been granted to him by James
shortly before his abdication, being given to his brother Arthur, Earl of Torrington
, who had taken the opposite side in politics. On the suppression of the Irish rebellion Herbert returned with James
to France and resided for a time at St. Germain-en-Laye
. He received from James the title of Earl of Portland
and the office of Lord Chancellor
, and busied himself in writing manifestos for his master. As a Protestant he had never enjoyed James's full confidence, and being a somewhat free speaker he soon lost what he had, was dismissed, and retired to Flanders in the autumn of 1692. He afterwards returned to St. Germain-en-Laye
, where he subsisted principally on the charity of his brother
until his death in November 1698. He was unmarried. Burnet
says of him that, though he was but an indifferent lawyer, 'he was a well-bred and a virtuous man, and generous and good-natured.'
Earl of Portland
Earl of Portland is a title that has been created twice in the Peerage of England, first in 1633 and again in 1689.-First creation :The title of Earl of Portland was first created for the politician Richard Weston, 1st Baron Weston, in 1633...
, was an English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
judge who served as Chief Justice of the King’s Bench
Lord Chief Justice of England and Wales
The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...
during the reign of James II
James II of England
James II & VII was King of England and King of Ireland as James II and King of Scotland as James VII, from 6 February 1685. He was the last Catholic monarch to reign over the Kingdoms of England, Scotland, and Ireland...
.
Early life and career
Herbert was a younger son of Sir Edward Herbert, Lord KeeperLord Keeper of the Great Seal
The Lord Keeper of the Great Seal of England, and later of Great Britain, was formerly an officer of the English Crown charged with physical custody of the Great Seal of England. This evolved into one of the Great Officers of State....
to Charles II
Charles II of England
Charles II was monarch of the three kingdoms of England, Scotland, and Ireland.Charles II's father, King Charles I, was executed at Whitehall on 30 January 1649, at the climax of the English Civil War...
, and his wife, Margaret, daughter of the Master of Requests
Court of Requests
The Court of Requests was a minor equity court in England and Wales. Created at an unknown date, it first became a formal tribunal with some Privy Council elements under Henry VII, hearing cases from the poor and the servants of the King. It quickly became popular due to the low cost of bringing a...
, Thomas Smith
Thomas Smith (judge)
Sir Thomas Smith , was the English master of requests.-Family and identity:Smith was born at Abingdon in Berkshire , about 1556. He was the son of Thomas Smith, who is almost certainly to be identified with the Thomas Smith who was Mayor of Abingdon in 1584...
of Abingdon
Abingdon, Oxfordshire
Abingdon or archaically Abingdon-on-Thames is a market town and civil parish in Oxfordshire, England. It is the seat of the Vale of White Horse district. Previously the county town of Berkshire, Abingdon is one of several places that claim to be Britain's oldest continuously occupied town, with...
, Berkshire
Berkshire
Berkshire is a historic county in the South of England. It is also often referred to as the Royal County of Berkshire because of the presence of the royal residence of Windsor Castle in the county; this usage, which dates to the 19th century at least, was recognised by the Queen in 1957, and...
(now Oxfordshire
Oxfordshire
Oxfordshire is a county in the South East region of England, bordering on Warwickshire and Northamptonshire , Buckinghamshire , Berkshire , Wiltshire and Gloucestershire ....
) & Parson's Green, Middlesex
Middlesex
Middlesex is one of the historic counties of England and the second smallest by area. The low-lying county contained the wealthy and politically independent City of London on its southern boundary and was dominated by it from a very early time...
, and widow of Thomas Carey of Sunninghill Park
Sunninghill Park
Sunninghill Park is a country house and estate of some , located north of Sunninghill, lying between Ascot and the southern boundary of Windsor Great Park in Berkshire, England. It was the official residence of the Duke of York from 1990 until 2004....
, Berkshire. He was brother of Arthur Herbert, 1st Earl of Torrington
Arthur Herbert, 1st Earl of Torrington
Arthur Herbert, 1st Earl of Torrington was a British admiral and politician of the late 17th and early 18th century. Cashiered as a rear-admiral by James II of England in 1688 for refusing to vote to repeal the Test Act, which prevented Catholics from holding offices, he brought the Invitation to...
and became a scholar of Winchester
Winchester College
Winchester College is an independent school for boys in the British public school tradition, situated in Winchester, Hampshire, the former capital of England. It has existed in its present location for over 600 years and claims the longest unbroken history of any school in England...
in 1661, aged 13. He was elected probationer fellow of New College, Oxford
New College, Oxford
New College is one of the constituent colleges of the University of Oxford in the United Kingdom.- Overview :The College's official name, College of St Mary, is the same as that of the older Oriel College; hence, it has been referred to as the "New College of St Mary", and is now almost always...
, in August 1665, and, having graduated B.A. on 21 April 1609, entered the Middle Temple
Middle Temple
The Honourable Society of the Middle Temple, commonly known as Middle Temple, is one of the four Inns of Court exclusively entitled to call their members to the English Bar as barristers; the others being the Inner Temple, Gray's Inn and Lincoln's Inn...
, where he was called to the bar. He practiced for some years in Ireland, and was there created king's counsel on 31 July 1677.
Judicial advancement
Returning to England he was appointed Chief Justice of ChesterJustice of Chester
The Justice of Chester was the chief judicial authority for the County Palatine of Chester, from the establishment of the county until the abolition of the Great Sessions in Wales and the palatine judicature in 1830....
on 25 Oct. 1683, and on 10 February in the following year was knighted at Whitehall. In January 1684-5 he succeeded Sir John Churchill as Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
to the Duke of York
James II of England
James II & VII was King of England and King of Ireland as James II and King of Scotland as James VII, from 6 February 1685. He was the last Catholic monarch to reign over the Kingdoms of England, Scotland, and Ireland...
, on whose succession to the crown he was appointed Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
to the queen
Mary of Modena
Mary of Modena was Queen consort of England, Scotland and Ireland as the second wife of King James II and VII. A devout Catholic, Mary became, in 1673, the second wife of James, Duke of York, who later succeeded his older brother Charles II as King James II...
. On 15 April he was returned to parliament for Ludlow
Ludlow (UK Parliament constituency)
Ludlow is a county constituency represented in the House of Commons of the Parliament of the United Kingdom. It elects one Member of Parliament by the first past the post system of election....
. Like his father he had the highest notions of the royal prerogative
Royal Prerogative
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the sovereign alone. It is the means by which some of the executive powers of government, possessed by and...
, which much helped his advancement. On 16 Oct. 1685 he was sworn of the Privy Council, and on the 23rd he was called to the degree of Serjeant
Serjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
, giving rings with the significant motto 'Jacobus vincit, triumphat lex,' and the same day took his seat as Chief Justice of the King's Bench
Lord Chief Justice of England and Wales
The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...
in succession to Jeffreys
George Jeffreys, 1st Baron Jeffreys
George Jeffreys, 1st Baron Jeffreys of Wem, PC , also known as "The Hanging Judge", was an English judge. He became notable during the reign of King James II, rising to the position of Lord Chancellor .- Early years and education :Jeffreys was born at the family estate of Acton Hall, near Wrexham,...
, who had been appointed lord chancellor. Jeffreys
George Jeffreys, 1st Baron Jeffreys
George Jeffreys, 1st Baron Jeffreys of Wem, PC , also known as "The Hanging Judge", was an English judge. He became notable during the reign of King James II, rising to the position of Lord Chancellor .- Early years and education :Jeffreys was born at the family estate of Acton Hall, near Wrexham,...
characteristically exhorted Herbert on this occasion to 'execute the law to the utmost of its vengeance upon those that are now known, and we have reason to remember them, by the name of whigs
British Whig Party
The Whigs were a party in the Parliament of England, Parliament of Great Britain, and Parliament of the United Kingdom, who contested power with the rival Tories from the 1680s to the 1850s. The Whigs' origin lay in constitutional monarchism and opposition to absolute rule...
,' and 'likewise to remember the snivelling trimmers,' because 'our Saviour Jesus Christ says in the gospel that they that are not for us are against us '.
Godden v Hales
At the Rochester spring assizes in 1686 Sir Edward Hales, a Roman Catholic, was convicted for holding and acting under a commission in the army without taking the sacrament and the oaths of supremacy and allegiance in the manner prescribed by the Test ActTest Act
The Test Acts were a series of English penal laws that served as a religious test for public office and imposed various civil disabilities on Roman Catholics and Nonconformists...
. Thereupon his coachman, Arthur Godden, brought a collusive action against him in the king's bench for the prescribed penalty of £500, to which Hales demurred, pleading a dispensation under the great seal
Great Seal of the Realm
The Great Seal of the Realm or Great Seal of the United Kingdom is a seal that is used to symbolise the Sovereign's approval of important state documents...
. The case was argued before Herbert, who delivered formal judgment as follows : ' (1) That the kings of England are sovereign princes ; (2) that the laws of England are the king's laws; (3) that therefore it is an inseparable prerogative in the kings of England to dispense with penal laws in particular cases, and upon particular necessary reasons ; (4) that of these reasons and these necessities the king himself is the sole judge.' The plaintiff was accordingly nonsuited
Non-suit
-United States:In the United States, a voluntary nonsuit is a motion taken by the plaintiff to release one or more of the defendants from liability. So, for example, if a plaintiff wishes to give up on the lawsuit, he or she can file a nonsuit as to all defendants with the court, and all...
. The judgment occasioned general consternation in the country, and the judges were treated with scant respect on circuit. It was impugned as bad in point of law by Sir Robert Atkyns (1621–1709) in a tract entitled ' An Enquiry into the Power of dispensing with Penal Statutes.' Herbert replied with 'A Short Account of the Authorities in Law upon which judgment was given in Sir Edward Hales's case,' in which he argued that 'whatever is not prohibited by the law of God, but was lawful before any act of parliament made to forbid it, the king by his dispensation granted to a particular person may make lawful again to that person who has such dispensation, though it continues unlawful for everybody else.' Atkyns rejoined, and William Atwood
William Atwood
William Atwood was an English lawyer, known also as a political and historical writer.-Early life:William Atwood was son and heir of John Atwood of Broomfield, Essex...
, a barrister, also examined Herbert's vindication with much learning and ability.
Decisions against the king's interest
On 14 July 1686 Herbert was placed on the newly created ecclesiastical commission, a tribunal invested with as extensive jurisdiction over the clergy as the old Court of High CommissionCourt of High Commission
The Court of High Commission was the supreme ecclesiastic court in England. It was instituted by the crown during the Reformation and finally dissolved by parliament in 1641...
, and of which Jeffreys
George Jeffreys, 1st Baron Jeffreys
George Jeffreys, 1st Baron Jeffreys of Wem, PC , also known as "The Hanging Judge", was an English judge. He became notable during the reign of King James II, rising to the position of Lord Chancellor .- Early years and education :Jeffreys was born at the family estate of Acton Hall, near Wrexham,...
was the president. Having, however, refused to abet the king's design of introducing martial law by declining to order the execution of a deserter from the army, he was transferred to the chief-justiceship of the common pleas
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
in April 1687, being succeeded in the king's bench by the more compliant Robert Wright
Robert Wright (judge)
Sir Robert Wright was an English judge and Chief Justice of the King’s Bench 1687–89.-Early life:Wright was the son of Jermyn Wright of Wangford in Suffolk, by his wife Anne, daughter of Richard Bachcroft of Bexwell in Norfolk. He was descended from a family long seated at Kelverstone in Norfolk,...
. He still retained his place on the ecclesiastical commission, but gave further offence to the king by expressing the opinion that his proceedings in the case of Magdalen College
Magdalen College, Oxford
Magdalen College is one of the constituent colleges of the University of Oxford in England. As of 2006 the college had an estimated financial endowment of £153 million. Magdalen is currently top of the Norrington Table after over half of its 2010 finalists received first-class degrees, a record...
could not be legalised by any exercise of his dispensing power, and by voting against the inhibition of the recalcitrant fellows from the exercise of their clerical functions.
Loyalty to James II
On the flight of the kingJames II of England
James II & VII was King of England and King of Ireland as James II and King of Scotland as James VII, from 6 February 1685. He was the last Catholic monarch to reign over the Kingdoms of England, Scotland, and Ireland...
Herbert followed him to France and afterwards to Ireland, and was accordingly excepted from the bill of indemnity and included in a Bill of attainder
Bill of attainder
A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...
. The latter bill lapsed owing to an early prorogation, but Herbert's estates were sequestrated, the royal palace of Oatlands
Oatlands
Oatlands is a village and small district near Weybridge in Surrey which has acquired its name from the Royal Tudor and Stuart Oatlands Palace, the site of which is now a luxury hotel...
, Weybridge, Surrey, which had been granted to him by James
James II of England
James II & VII was King of England and King of Ireland as James II and King of Scotland as James VII, from 6 February 1685. He was the last Catholic monarch to reign over the Kingdoms of England, Scotland, and Ireland...
shortly before his abdication, being given to his brother Arthur, Earl of Torrington
Arthur Herbert, 1st Earl of Torrington
Arthur Herbert, 1st Earl of Torrington was a British admiral and politician of the late 17th and early 18th century. Cashiered as a rear-admiral by James II of England in 1688 for refusing to vote to repeal the Test Act, which prevented Catholics from holding offices, he brought the Invitation to...
, who had taken the opposite side in politics. On the suppression of the Irish rebellion Herbert returned with James
James II of England
James II & VII was King of England and King of Ireland as James II and King of Scotland as James VII, from 6 February 1685. He was the last Catholic monarch to reign over the Kingdoms of England, Scotland, and Ireland...
to France and resided for a time at St. Germain-en-Laye
Château de Saint-Germain-en-Laye
The Château de Saint-Germain-en-Laye is a royal palace in the commune of Saint-Germain-en-Laye, in the département of Yvelines, about 19 km west of Paris, France. Today, it houses the Musée d'Archéologie Nationale ....
. He received from James the title of Earl of Portland
Earl of Portland
Earl of Portland is a title that has been created twice in the Peerage of England, first in 1633 and again in 1689.-First creation :The title of Earl of Portland was first created for the politician Richard Weston, 1st Baron Weston, in 1633...
and the office of Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, and busied himself in writing manifestos for his master. As a Protestant he had never enjoyed James's full confidence, and being a somewhat free speaker he soon lost what he had, was dismissed, and retired to Flanders in the autumn of 1692. He afterwards returned to St. Germain-en-Laye
Château de Saint-Germain-en-Laye
The Château de Saint-Germain-en-Laye is a royal palace in the commune of Saint-Germain-en-Laye, in the département of Yvelines, about 19 km west of Paris, France. Today, it houses the Musée d'Archéologie Nationale ....
, where he subsisted principally on the charity of his brother
Arthur Herbert, 1st Earl of Torrington
Arthur Herbert, 1st Earl of Torrington was a British admiral and politician of the late 17th and early 18th century. Cashiered as a rear-admiral by James II of England in 1688 for refusing to vote to repeal the Test Act, which prevented Catholics from holding offices, he brought the Invitation to...
until his death in November 1698. He was unmarried. Burnet
Gilbert Burnet
Gilbert Burnet was a Scottish theologian and historian, and Bishop of Salisbury. He was fluent in Dutch, French, Latin, Greek, and Hebrew. Burnet was respected as a cleric, a preacher, and an academic, as well as a writer and historian...
says of him that, though he was but an indifferent lawyer, 'he was a well-bred and a virtuous man, and generous and good-natured.'