HERBERT, Henry (1654-1709)

HERBERT, Henry (1654–1709)

cr. 28 Apr. 1694 Bar. HERBERT OF CHIRBURY (CHERBURY)

First sat 12 Nov. 1694; last sat 13 Jan. 1709

MP Bewdley 10 Mar. 1677, 1689, 1690-28 Apr. 1694, Worcester 1681

b. 24 July 1654, 2nd but o. surv. s. of Sir Henry Herbert‡ (1594–1673) of Ribbesford, Worcs., and 2nd w. Elizabeth (d.1698), da. of Sir Robert Offley of Dalby, Leics. educ. Trinity, Oxf. matric. 8 Feb. 1670; I. Temple 1671; L. Inn 1672. m. 12 Feb. 1678 (with £8,000), Anne (d. 12 July 1685), da. and coh. of John Ramsey, alderman of London, 1s.; 3s. 1da. illegit. with Frances Buckley. suc. fa. 27 Apr. 1673. d. 22 Jan. 1709; will 25 July 1707, pr. 15 Feb. 1709.1

Commr. bd. of trade 1707–d.

Freeman, Bewdley 1670; custos rot. Brec. 1695–1702; capt. militia horse, Worcs. by 1697–d.

Member for Bewdley, 1677–94

Henry Herbert’s pious and demanding father, Sir Henry Herbert‡, a younger brother of Edward Herbert†, Baron Herbert of Chirbury, made a deathbed wish that his only son and heir, Henry, would replace him as burgess for the Worcestershire corporation of Bewdley, a single-member constituency. Although underage at his father’s death on 27 Apr. 1673, Henry Herbert contested the Bewdley seat, unsuccessfully, against his opponent Thomas Foley‡. The borough’s charter of 1605 established a franchise which was to provide ample scope for manipulation and contention in this and the years ahead. Herbert originally considered disputing Foley’s return by contesting the eligibility of several of the burgesses but, realizing that this line of attack would not get very far, he charged Foley instead with bribery. The committee for elections accepted this and placed Herbert in the Bewdley seat instead of Foley on 10 Mar. 1677. Despite all this effort, Herbert was initially a lacklustre parliamentarian and his agent in London had to chivvy him to come to Westminster to take part in the session investigating the Popish Plot.2

At the Bewdley election for the first Exclusion Parliament Herbert lost against the deceased Thomas Foley’s younger son, Philip Foley‡, and once again petitioned. His petition was unsuccessful and he did not sit again until returned for the borough of Worcester in March 1681. He was not returned for any seat in 1685, a casualty of the growing Tory dominance in Bewdley instituted by the new borough charter issued in May 1685.

By the mid-1680s Herbert was identified with the Whigs. He joined William of Orange at The Hague in 1687–8, came over with the invasion fleet commanded by his second cousin Arthur Herbert, later earl of Torrington, and was appointed one of the commissioners for managing the revenue at the Williamite base at Exeter. He was returned unanimously for Bewdley in 1689, and again in 1690, and at this point he became very active in the Commons as a Whig supporter of William’s government.

Throughout his career, both as a commoner and as a peer after April 1694, Herbert felt that he was insufficiently compensated for his services to the court, and constantly begged William III for office or royal favour.3 He was finally rewarded for his attachment to the Whigs, and for his family connection to a renowned, but recently extinct, noble line, by his elevation to the peerage on 28 Apr. 1694 as Baron Herbert of Chirbury of the second creation, part of the large-scale creations and promotions of that spring which were a sign of William’s turn to the Whigs.

This honour did not stop Herbert’s importunities. Almost immediately upon receiving this new honour he addressed himself to Hans Willem Bentinck, earl of Portland, requesting to be made envoy to the States General.4 That request having failed, in September 1694 he turned to the lord keeper, Sir John Somers, later Baron Somers, asking for a place as teller of the exchequer and complaining that he had received no mark of favour from the king except ‘what has been a charge to me’, perhaps referring to the expense of maintaining his new dignity as a peer, and reminding Somers that he had been ‘pleased to say my case was hard to be overlooked for venturing my all, when those who ventured not had rewards’.5

The Junto Whig Somers became a key contact and colleague for Herbert of Chirbury; they were both from Worcestershire, had represented Worcester borough in the Commons, and had reason to resent the growing Foley–Harley interest in the Marcher counties. In the first days of 1700 Herbert once again begged Somers to fulfil the king’s reputed promise to him to put him in the place of Charles Montagu, (later Baron Halifax), in the treasury and sounded the same old refrain:

My Lord, I’ve neither been ambitious or pressing, as others have been and are; but if I’m to be the only one, who have continued in the same warmth for this Government as I brought over with me at the Prince of Orange’s landing, without any personal profit, (especially when enemies to our Government have stepped over me into most advantageous places) I shall retire. I confess my principal will never let me act, as some do, in opposition to the Government I’ve ventured my all for, and desire may have long continuance; but that’s no reason I should be forgot.6

The only office that William III ever did confer on him was that of custos rotulorum of Brecknockshire, granted to him in April 1695.

A busy chairman in the House of Lords, 1694–8

Herbert of Chirbury first sat in the House on 12 Nov. 1694, the opening day of the 1694–5 session, the last of William III’s first Parliament. He was introduced between Charles Cornwallis, 3rd Baron Cornwallis, and Robert Bertie, Baron Willoughby of Eresby (later duke of Ancaster). He was from the start, as he liked to point out to Somers, a zealous attender of the House and partisan for the government, as he had been in the Commons, being present at all but 16 of that session’s 127 sittings.

Herbert largely appears in the records of his first session in the House as a nominee to select committees on legislation – 25 in total. He was named to almost all select committees appointed to consider legislation in most subsequent sessions as well. In addition, on 23 Jan. 1695 he dissented from the resolution agreeing to the amendment which would postpone the implementation of the treason trials bill from 1695 to 1698, and on 19 Mar. he protested when the House reversed its previous decision in the matter of the peerage claim of Richard Verney, later 11th Baron Willoughby de Broke, and resolved that a title held in abeyance between the daughters of a peer could be restored to the single surviving male heir. On 29 Apr. 1695 he was one of the 11 peers assigned to draw up the House’s objections to a Commons proviso to the bill for the encouragement of privateers, and he was named a manager for the conference on 1 May.

Herbert attended 78 per cent of the meetings of the 1695–6 session, the first of the new Parliament. He was involved in the debates in the committee of the whole in early December on the state of the nation, and was on 6 Dec. named to a subcommittee to draw up an address on matters arising from debates. A committee of the whole on 30 Dec. 1695 named him to the committee of 16 peers assigned to amend a clause in the bill for regulating the coinage, and in this capacity he was a manager for two conferences on the matter on 3 and 7 Jan. 1696.

Most prominently, he became closely associated with matters concerning the East India Company and its trade. On 12 Dec. 1695 he was named to a committee appointed by the committee of the whole House to draw up an address against the establishment of an East India Company by the Scots Parliament, and over the following two days was named a manager of the conference on this address and was also placed on a committee to examine papers regarding the East India trade. On 5 and 11 Feb. 1696 Herbert chaired two committees of the whole House which resolved that a select committee should be established to consider the charters of the existing East India Company in order to draft a new one. He chaired the first meeting of this committee on the following day, 12 Feb., and from that point chaired each of the following 12 meetings of the committee, which heard copious testimony from the East India Company and the opponents of its monopoly. He was ready to report to the House the lengthy proposed regulations of the new East India Company on 1 Apr. 1696.7

The East India Company committee was Herbert’s first foray into chairing committees. He also stood in as chairman for meetings, usually quickly adjourned with little discussion, of four committees, including that on the bill for the naturalization of children of William Henry Nassau van Zuylestein, earl of Rochford, which he reported as fit to pass to the House on 10 Mar. 1696.8 More prominently, he began his long-running activity as a chairman of committees of the whole House. From 21 Dec. 1695 he chaired eight committees of the whole, including the two on the East India trade in early February, one on the recoinage, another on regulating elections, and one, held in April near the end of the session, on the bill for the better security of the king’s person and government, convened in the wake of the information concerning the assassination plot against the king. On the first news of the plot, in late February he was placed on the drafting committee for the address to the king, and served as a manager for the conference seeking the Commons’ concurrence. Herbert loyally subscribed to the Association at the first possible moment.9 On 17 Jan. 1696 he again made clear his opposition to Richard Verney’s claim to the barony of Willoughby de Broke by telling for the minority not contents on the question whether Verney was to be heard at the bar of the House. He acted as teller again on 24 Apr. at the report stage on the juries regulation bill.

Herbert’s attendance was even higher in the 1696–7 session, when he came to all but 13 of its 117 sittings. On 28 Nov. 1696 he chaired the committee of the whole House on the recoinage bill, and two days later was named a manager for a conference on the Commons’ bill for the waiving of parliamentary privilege. These and other matters quickly got lost in the controversy over the bill to attaint Sir John Fenwick‡, which legislation Herbert probably helped to draft, judging by his defence during the debate of 18 Dec. 1696 of the wording of the bill, particularly the words ‘of which treasons the said Sir John Fenwick is guilty’ against the objections of Laurence Hyde, earl of Rochester.10 Herbert duly voted for the passage of the bill when it came to its third reading five days later. He was then part of the small group of Whigs who on 15–18 Jan. 1697 objected to the decision to commit Charles Mordaunt, earl of Monmouth (later 3rd earl of Peterborough), to the Tower for his part in encouraging Fenwick to implicate Tory and moderate members of the ministry.11

Herbert’s most prominent activity in this session came near its end, when he led the committee entrusted to examine the naval misadventures of the previous summer. On 2 Dec. 1696 he was named to a large select committee, comprising almost the entire House, assigned to consider papers submitted by the commissioners of the admiralty and on 17 Mar. 1697 this committee was revived to consider the previous summer’s naval mishap when the Anglo-Dutch fleet failed to intercept the Toulon fleet on its way to Brest. From the committee’s first meeting on 17 Mar. 1697 to its lengthy final report on 14 Apr., it was Herbert who consistently acted as chairman at its 23 separate meetings, during which the committee tried to extract information from the uncooperative admiralty commissioners.12 It was probably concerning this investigation that in an undated letter to his first cousin and friend, the retired admiral Torrington, condemned the ‘insipid ignorants’ who composed ‘that miserable commission of the Admiralty, that has made the kingdom almost as wretched as themselves. I wish them with all my heart eternally confounded.’13

In addition, from 8 Feb. to the end of the session on 16 Apr. 1697, Herbert was chair for eight select committee meetings, most quickly adjourned without discussion.14 Between 27 Mar. and 8 April, as the session was drawing to a close, he also chaired committees of the whole House on four occasions, three of which were on the bill for the encouragement of lustring and alamode manufacture, which he reported to the House on 8 April. He was teller on 10 Feb. 1697 in the division on the motion to give a second reading to the bill to enable Susannah Smith to remarry; it was rejected by just one vote.

Herbert maintained his high attendance level in the 1697–8 session, when he came to 82 per cent of its sittings. The early weeks of the session were largely quiet for him. He chaired and reported from a number of select committees on 22 Dec. 1697, and on 7 Jan. 1698 chaired the committee of the whole House on the bill to prevent the circulation of hammered silver coin, which he reported fit to pass.15 On 7 Feb. John Vaughan, 2nd Baron Vaughan (and 3rd earl of Carbery in the Irish peerage), formally complained that Herbert was breaching his privilege through his legal actions against him. Around 1693 the constantly importunate Herbert had been granted under the privy seal the right to the arrears due to the crown on the account of James II’s auditor of Wales, among which (wrongly, according to Carbery) was a debt reputedly due from the earl. The committee for privileges under Thomas Grey, 2nd earl of Stamford, decided on 18 Feb. 1696 that Herbert’s continuing efforts to claim these arrears in the court of exchequer were indeed a breach of Carbery’s privilege.16

The last weeks of the session, in the spring of 1698, were a busy time for Herbert. In March 1698 he played a prominent part in the Junto attack on the exchequer official Charles Duncombe‡. On 4 Mar. he acted as a teller on the motion for a second reading of the bill to punish Duncombe, and the following day was appointed to the committee to prepare for a conference on the bill, for which he was a manager on 7 and 11 March. He voted to commit the bill in the House on 15 Mar. and entered his protest when that motion was rejected. Over the course of the following two days he subscribed to two protests against the attempt of James Bertie‡ to claim the estate of his wife’s great-uncle John Carey‡ in the appeal case of Bertie v Viscount Falkland, and on 14 Apr. he was a teller in another judicial case before the House. On 18 Apr. he chaired and reported from the committee for privileges dealing with a breach of privilege complaint from George Compton, 4th earl of Northampton.17 In May he served as chair and reporter of the committee of the whole House on six occasions, twice on the bill against clipping coin, and four times on the bill for the preservation of timber in the New Forest, which was eventually passed on 27 May. He also served as a manager for the conference on the bill against blasphemy. On 20 and 21 May he chaired select committee meetings on three bills, including the bill against the Irish woollen manufacture, and on 24 May he led and reported from the select committee assigned to draft an order stating that the appeal of William King, bishop of Derry [I], to the Irish House of Lords in his case against the Irish Society of London was null and void.18

At this time Herbert also led the committee which examined the validity of the sureties for the bail of John Goudet and the other French merchants impeached by the Commons, and he reported to the House on this on 23 May.19 He was apparently named a manager for the free conference scheduled for 21 June to discuss the place for the Commons to stand during the trial, and he was more formally named to the small group of 15 established on 22 June, following the free conference, to examine the Journals for precedents for the next steps to be taken.20 The Goudet trial did not halt his other activities. Over the two days 9 and 10 June he chaired the committee of the whole on another three matters – the bill to naturalize Hilary Reneu and others, the repeal of the Act for the Relief of Creditors, and the bill to settle the African trade – and on 29 June he chaired two select committees and reported to the House from one, on a bill to extend the time required for registering ships.21

By this time Herbert was apparently seen by others as a key member of the House, with sufficient influence to promote causes. For example, throughout the spring of 1698 Torrington was concerned by rumours that the Commons would introduce a bill to resume all of William III’s land grants in England, including his lands in Oatlands Park and the Bedford Level, and he looked to the influence of Herbert to manage and defend his interests if and when this bill came before the House.22

Hostile Parliaments, 1698–1702

In the summer of 1698 Herbert was also making preparations for the elections which would follow upon the prescribed dissolution of Parliament, and his growing place in Junto Whig circles may have led him to be more ambitious. In July Abigail Harley reported to her father, Sir Edward Harley‡, that ‘Lord Herbert is making an interest for somebody’, unfortunately unidentified, in Radnorshire, and from that time Herbert continued to try to make inroads into the predominant interest of Robert Harley, later earl of Oxford, in that county, but with little success, as Harley’s cousin Thomas Harley‡ was returned to the seat unopposed in every Parliament from 1698 until 1715.23 The bulk of Herbert’s attention and energy was reserved for his attempt to re-exert his interest in Bewdley. At Herbert’s elevation to the peerage, Salwey Winnington‡, son-in-law of Thomas Foley‡ and brother-in-law of Robert Harley, was returned at the Bewdley by-election of 19 Nov. 1694 and again at the general election of 1695.24 Herbert worked hard to undermine the Foley–Winnington interest in the borough. The Worcestershire native William Walsh‡, whom Herbert had briefly put forward as his candidate in the 1694 by-election, wrote to their mutual friend Somers in late May 1698 expressing his misgivings about Herbert’s plans to procure a new charter for the borough whereby he could purge the corporation of his opponents.25 Walsh’s fears that such a blatant act of manipulation would prove counter-productive on this occasion were proved correct and Winnington was returned once again unopposed at the election of July 1698.

Herbert did not abandon his scheme and in March 1699 petitioned the king for the restoration and confirmation of the original 1605 charter on the grounds that its surrender in 1684 had been done by surprise and underhand practices. The effect would have been to deprive all those members of the corporation named in the 1685 charter of office, and to reinstate all those who had been burgesses under the old charter, their number to be made up to a full complement by named appointments by the king – in effect Herbert’s supporters. The Privy Council at this point declined getting involved and left it to the courts to handle the matter where, despite Herbert’s request for the assistance of his friend and ally Somers, the lord chancellor, it became bogged down and lost in litigation in early 1700.26

After his efforts to ensure a Whig victory at Bewdley were unsuccessful, Herbert’s own attendance in the House slipped slightly in the new Parliament, to 78 per cent. Nor was he particularly engaged in this session. With Hugh Cholmondeley, Baron (later earl of) Cholmondeley, he introduced Christopher Vane, Baron Barnard, to the House on 22 Dec. 1698. On 28 Jan. 1699 he chaired the committee of the whole House which found the Disbandment Act fit to pass, without any amendment, and on 23, 25, and 27 Mar. 1699 he chaired all three committees of the whole on the petition of Captain Desborow against his court martial. On the first day of May 1699 Herbert chaired committees of the whole House on two bills, both of which he reported as fit to pass. He chaired three select committees, and on 21 Apr. reported one of them to the House.27 On 3 May, the penultimate day of the session, he was named a manager for a conference on the bill for a duty on paper.

Herbert returned to his usual attendance rate in the following session of 1699–1700, coming to 85 per cent of its meetings. Having in 1696 led the committee which had devised the charter of the new East India Company and having invested £1,000 in the venture since the company’s formation in 1698, he was not surprisingly predicted to oppose the bill to continue the old East India Company as a corporation, and he did vote against the motion to adjourn into a committee of the whole House to consider amendments to the bill on 23 Jan. 1700, entering his protest when the bill passed that day.

In early March Herbert was involved in another bill which affected him directly: that for the sale of part of the estate of Charles Hore, whose first wife had been Herbert’s sister Elizabeth. Herbert himself chaired two select committees on this bill, during which he declared his own consent to the bill and added a saving clause for the benefit (presumably) of his niece, whose guardian he was; he reported the bill as fit to pass on 22 Mar. 1700.28. Between 22 Feb. and 11 Apr. he was a frequent chair of committees of the whole House: on the act authorizing commissioners to negotiate for a union of England and Scotland; twice on the divorce bill of Henry Howard, 7th duke of Norfolk; on the bill for taking away export duties on woollen manufactures; on the repeal of the 1697 Act to prevent foreign imports of bone lace; twice on the bill to determine the debts due to the armed forces; and on four other bills.

Herbert was closely involved in the disputes with the lower house in April 1700 which closed the session on such a sour note. On 2 Apr. he was named as a reporter for the conference requested by the Commons on their disagreements over the bill for taking off duties on woollen manufactures. On 5 and 6 Apr. he chaired the committee of the whole House which considered the Commons’ controversial provisions for the resumption of Irish forfeited land in the land tax bill; he was appointed a manager for the three conferences held on 9–10 Apr. on the dispute over the House’s own amendment to the bill; and on 10 Apr. he subscribed to the protest against the resolution, prompted by the king’s need to have the supply bill passed, not to insist on the amendment.

Herbert first sat in the new Parliament, following the dissolution of December 1700, on 6 Mar. 1701, a full month after the session had started, and attended only a little over half of the meetings. On 31 Mar. he reported from the committee for privileges that the committee declined to proceed further in the dispute between the dowager Viscountess Saye and Sele and her stepson Nathaniel Fiennes, 4th Viscount Saye and Sele, until a proposed arbitration – to be conducted by William Talbot, bishop of Oxford, Somers, and Herbert himself – had been allowed to take its course.29 He was involved as a teller in three divisions, one on 26 May on whether to commit Perkins’s bill and two on 11 June on the motion whether to appoint a date to consider in a committee of the whole House the bill for the crown’s resumption of the charters of the American plantations. On 10 June he chaired, and reported from, a select committee on a naturalization bill, and on 19 and 20 June he chaired committees of the whole House on two other bills.

On 21 June Herbert acted as, in her own words, ‘a most zealous and unparalleled friend’ to Elizabeth, Lady Inchiquin (née Brydges) in her continuing dispute with her third husband, Charles Howard, 4th Baron Howard of Escrick. Her first husband had been Herbert’s cousin Edward Herbert, 3rd Baron Herbert of Chirbury. After his death in 1678 she had married William O’Brien, 2nd earl of Inchiquin [I]. He had died in 1692, whereupon she married Howard of Escrick, who deserted her in December 1694 and, after arranging that the jointure of £1,000 p.a. settled on her by the 3rd Baron Herbert of Chirbury would be channelled to him, absconded to Holland with his first ‘wife’, Hannah Pike. The dispute between Lord Howard and Lady Inchiquin over the jointure rumbled on for many years in the courts. In February 1701 the court of delegates found their marriage null and void, after which Howard petitioned his peers for a commission of review to examine the judgment, which motion was debated by the House on 21 June. After a long debate, the vote, including proxies, was even, leading to a rejection of the motion.30 Herbert, according to Lady Inchiquin herself, played a lead in achieving this razor-thin victory for her, as not only did he vote in her favour, but he appears to have brought George Nevill, 13th Baron Abergavenny, to vote against the motion: ‘I see how heaven still makes you my only deliverer, by gaining my Lord Bergavenny. … Good God! how nicely did you deliver me! with but one voice!’31 Further consideration of this matter was hindered by the prorogation of Parliament on 24 June because of the continuing rancour over the Commons’ attempt to impeach the Junto peers. Herbert unsurprisingly voted for the acquittal of his Worcestershire neighbour Somers and Edward Russell, earl of Orford, in the last days of the session.

The situation in Bewdley was fluid in the weeks preceding the elections of November 1701. As William Walsh reported to Somers,

Mr Winnington seems to stand upon very ticklish ground at Bewdley, they having been very angry at the proceedings of the Parliament the last session and he having been in London ever since. Mr Soley [John Soley, the recorder of the borough] whose interest in a great measure brought him in has declared very publicly his dislike of their proceedings and that he would never be for anyone who had been for the impeachments.

Soley was not willing to support Herbert and his candidate either, perhaps because he opposed Herbert’s blatant attempts to make Bewdley a pocket borough through a new charter. Walsh tried to mediate and effect a working compromise whereby Herbert would support Soley against Winnington, but in the event these machinations came to nothing and Winnington was returned unopposed once again in November 1701 and May 1702.32

Although Herbert was present for the first day of the new Parliament on 30 Dec. 1701, he effectively stopped attending the session after April 1702, a month after William III’s death, and in total came to only three-fifths of the session’s sittings. On 22 Jan. he chaired and reported from the drafting committee for the address on the debts due to Col. Baldwin Leighton.33 Throughout the first two months of 1702 he was almost exclusively involved in measures to protect the king, and the Protestant succession, from the threat posed by Louis XIV’s recognition of the Pretender as king of England. On 12 Jan. he chaired the committee of the whole House discussing the abjuration bill, and ten days later he also chaired the committee of the whole considering the bill to attaint the Pretender. On 6 Feb. he was a reporter for the conference where the Commons stated their objections to the House’s amendment to the bill, and he was named to the committee to draw up reasons for the House’s insistence on its amendment. The following day, Herbert told in two divisions on the motion to recommit the committee’s report, which passed, and he chaired the committee when it met again to reformulate the reasons for insisting.34 This time the House approved of the reasons when Herbert reported them, but the lower house continued to object when Herbert presented these reasons at a conference on 10 February. After a free conference two days later, from which Herbert once again reported to the House, the House decided not to insist upon its amendment.

The issue at the heart of this disagreement appears to have been the House’s attempt to attaint Mary of Modena by an amendment to the Pretender’s attainder bill, a method which the Commons thought was insufficient for an attainder. To rectify this objection Herbert chaired a committee of the whole House on 17 Feb. which approved a separate bill to attaint the Pretender’s mother. On 7 March, one day before the king’s death, Herbert chaired a committee of the whole on a supply bill, but three days later he was in charge of the committee of the whole for the bill to explain a clause in the Act which established the Association in 1696. He left the House for good in that session on 11 April.

A new regime, 1702–6

Shortly after the prorogation of Parliament Herbert felt the effects of the Tory sweep of offices following the queen’s accession, when he was removed from his one and only office, as custos rotulorum of Brecknockshire, on 8 June 1702 and was replaced by the Tory John Ashburnham, Baron Ashburnham. He continued his petitioning for office, initially looking to the lord treasurer, Sidney Godolphin, Baron (later earl of) Godolphin, and then concentrating on cultivating the favour of the lord privy seal, John Holles, duke of Newcastle, with whom he became closely connected.35 In a letter of 30 Mar. 1705 he emphasized to Newcastle ‘my desire of now coming into the queen’s service’ and suggested that he would be suitable for the place at the board of trade then held by the Tory Thomas Thynne, Viscount Weymouth.36 It was not, however, until 25 Apr. 1707 that he was appointed a commissioner of trade in a new commission which saw him and Stamford replace Weymouth and other members of the board, part of the entry of Junto Whigs into office.37

Herbert first sat in Anne’s Parliament on 21 Nov. 1702, perhaps arriving at this time in order to help defeat the occasional conformity bill. It was he who, in the first week of December 1702, chaired the three committees of the whole House which amended the bill in ways which assured its rejection by the Commons. He was a manager for a conference on these amendments held on 17 Dec. and the following day was placed on the committee to draft reasons for the House’s insistence on them. In this role he was one of a small group of five peers who met with William Nicolson, bishop of Carlisle, in the Jewel Tower on 23 Dec. to examine the parliamentary records to find precedents for bills originating in the House with pecuniary penalties; and as a member of the committee for the Journal Herbert placed his signature next to the long entry of 8 Jan. 1703 in which these precedents were detailed.38 He managed two more conferences on these disputed amendments, on 9 and 16 Jan. 1703, and after the latter he voted to adhere to them, thus almost assuring the bill’s demise in the Commons. On 29 Jan. he ‘warmly opposed as irregular’ the last-minute attempt by Tories to let the clause regarding the Corporation Act remain as it was originally submitted in the Commons’ bill, despite the subsequent amendments.39 On 19 Jan. 1703 Herbert also joined many of his Whig colleagues in protesting against the decision to maintain a clause in the bill to settle a revenue on Prince George of Denmark, (duke of Cumberland), which seemed to exclude all peers of foreign birth, such as William III’s Dutch followers, from sitting in the House or the Privy Council.

On 4 and 5 Feb. 1703 he chaired the committee of the whole on the bill for extending the time allowed for taking the oath of abjuration, in which the controversial motion of Thomas Wharton, 5th Baron (later marquess of) Wharton, to add a clause making it treason to attempt to set aside the Hanoverian succession was adopted after being modified by the legal officers.40 Between 13 and 26 Jan. 1701 he chaired four committees of the whole on other matters as well, including a bill to explain a clause in the Act of Settlement, and on 23 Feb. he chaired another committee on that year’s militia bill. He was also involved in select committees, chairing them on six occasions on four different matters. 41 On 20 Jan. he reported that the committee would not proceed on the divorce bill of Coursey Ireland because no bill of that kind had ever been before a committee, and on 12 Feb. he reported the bill for the better carrying on the war in the Indies as fit to pass.

Herbert missed the entire first month of the 1703–4 session, and came to only just over two-thirds of its sittings. That he first attended the House on 13 Dec. 1703, one day before the occasional conformity bill was to be brought in to the House, suggests that once again he felt strongly enough about it to attend just to help have the bill rejected at its second reading. In the new year of 1704 he resumed his usual role in committees of the whole House and on 17 Jan., 10 Feb., and 21 Mar. he led committees of the whole on a supply bill and on the controversial Recruitment Act, which garnered a sizeable protest against its passage on 21 Mar. 1704. In a committee of the whole House on 13 Mar. 1704 (which he was not chairing) Herbert told in a division on whether to include a clause in the bill for first fruits and tenths. On 3 Feb. he chaired and reported from the select committee on Mary Fermor’s estate bill, and between 28 Feb. and 2 Mar. he chaired four select committee meetings on as many bills, three of which he reported to the House on 4 and 7 March.42

In these early years of Anne’s reign Herbert frequently attended social and political meetings of Whigs, as seen in Wharton’s account book and, more copiously, in the social diary of Charles Bennet, 2nd Baron Ossulston (later earl of Tankerville). Judging by Ossulston’s diary, Herbert’s most frequent dining companions were, besides Ossulston himself, his kinsman Torrington, Charles Mohun, 4th Baron Mohun, and Thomas Howard, 6th Baron Howard of Effingham. Herbert also appears to have been very close to Baron Abergavenny, whose vote he had been able to influence in June 1701. Abergavenny appears as one of Herbert’s most frequent companions in Ossulston’s diary and he later named Herbert as one of his executors in his will of December 1708, although in the event Herbert predeceased him.43

Ossulston’s diary records that on 13 Feb. 1704 Herbert was part of a large gathering of Whig peers at the St James’s residence of Charles Spencer, 3rd earl of Sunderland, presumably assembled to discuss tactics for the investigation of the Scotch Plot, then before the House.44 Herbert’s only known involvement in this affair was his subscription, on 24 Mar. 1704, to the protest against the resolution not to put the question whether the information in the examination of Sir John Macleane – taken and recorded by Daniel Finch, 2nd earl of Nottingham, the main target of the Whig attack – was imperfect. Three days after this Herbert was appointed one of the managers for the conference on the bill of public accompts.

On 18 Nov. 1704 Herbert registered his proxy with his cousin Torrington – the first and only time that he is recorded as either registering or receiving a proxy (although he may have registered a proxy in the preceding session, for which the register is missing). Torrington held this proxy until Herbert first appeared in the House for the 1704–5 session on 11 Jan. 1705 and, having arrived over two months after the start of the session, Herbert managed to attend just under half of its sittings, the lowest attendance rate of his parliamentary career. In the last three days of January 1705 he acted as a teller in two appeals before the House – Prinn v. How and Godolphin v. Tudor – and between 10 Feb. and 6 Mar. chaired committees of the whole House on seven occasions, three of them alone on the bill for the ease of sheriffs. He was also busy as a chairman of select committees on 5 Feb., on which day he chaired eight committees and reported from five of them. He chaired a further two committees on 8 Feb. and reported a week later.45

In the last two weeks of the session in March Herbert was particularly busy in disputes between the Houses. On 7 Mar. he was named a manager for a conference on the bill to prevent traitorous correspondence, and was also placed in the group of ten members assigned to draw up an address to the queen on the proceedings on the Aylesbury men. Five days later he helped to manage the conference on the dispute over the House’s amendment to the militia bill, and he was made part of the drafting committee for the House’s insistence on this amendment. On 13 Mar., the penultimate day of the session, he attended another conference on the militia bill – one on the House’s disagreement with the Commons’ amendment to the naturalization bill of Jacob Péchels – and then was present for the report on the address on the Aylesbury men, which he may have helped draft.

After the statutory dissolution of the Parliament in April 1705, Herbert was again active for the Junto Whigs in elections. Somers contacted him on behalf of Wharton to insist that he be present to help at the Buckinghamshire election.46 Herbert had inherited from his father a Buckinghamshire estate, Stokes Manor, part of Hanslope manor. He appears to have maintained a residence there, and to have had some influence in local life, serving as a justice of the peace since 1700 at least.47 Most of Herbert’s attention, however, was directed towards Bewdley, where Winnington won again against Herbert’s own son Henry Herbert, later 2nd Baron Herbert of Chirbury, but only after some extremely sharp practice from the returning officer Henry Toye, who initially decreed the younger Herbert unqualified to stand as he was not a burgess of the corporation, but then subsequently readmitted him to the poll after a number of burgesses had switched their votes; in the end Winnington squeaked in by only one vote.48

Herbert was again absent for much of the first month of the opening session of 1705–6, but he first sat on a significant day, 15 Nov. 1705, the day on which the Tories put forward the ‘Hanover motion’, calling for the presumptive heir, Sophia, Electress of Hanover, to be invited to reside in England. Herbert was involved in the many clashes over the next few weeks between the Whigs and the Tories, as the Whigs successfully put themselves forward as the natural protectors of the queen’s interests. A week after his arrival, on 22 Nov., Herbert chaired the committee of the whole House considering the state of the nation, in which the ousted secretary of state, Nottingham, made indirect attacks on the queen and the recent military campaign, and Wharton’s motions to prosecute the war against France more vigorously were accepted. On 6 Dec., in the committee of the whole House, Herbert voted in favour of the motion that the Church was not in danger under the queen’s administration.

He took part in the debates over the Whig regency bill, and its controversial ‘place clause’, and on 7 Feb. 1706 was made a manager for a conference on the House’s amendment to the bill. Following the report, the conference managers were assigned to draw up reasons for insisting on the amendment, which they argued before the Commons in two subsequent conferences on 11 and 19 February. On 9 Mar. Herbert was named one of the nine managers for the first conference on the Commons’ statement against the published letter which Sir Rowland Gwynne‡ had sent from Hanover to Stamford in support of Sophia’s residence in England. Along with the rest of the House he was again named a manager for two subsequent conferences on this matter on 11 March.

Otherwise Herbert continued in his usual role as a chairman of committees, both select and of the whole House. He chaired committees of the whole on eight occasions between 21 Dec. 1705 and 13 Mar. 1706. That on 15 Feb. 1706 was assigned to consider ways to manage the flood of private bills coming into Parliament, following a trenchant speech made by his colleague Somers against the ‘perfunctory and careless passing of such bills’.49 The resolutions that Herbert reported the following day governing the treatment of private bills ultimately became standing orders of the House. Much of his attention was taken by the committee on the bill for the prevention of frauds by bankrupts, which he chaired on 7, 11, and 13 March. On 1 Feb. he reported to the House that the bill to enable Scrope Howe‡, Viscount Howe [I], to make provisions for his daughters was fit to pass – even though there is no record in the committee minute books that he ever handled this committee. On 16 Feb. he chaired select committees on two bills, one of which he reported two days later, while on 6 Mar. he chaired two more select committees, and a further one on 14 Mar., all of which he reported to the House on those days.50

Having sat in 72 per cent of the meetings of this session, Herbert maintained roughly the same attendance level in the following session of 1706–7, coming to 69 per cent of its meetings. After the brief prorogation of 8–13 Apr., he came to eight of the ten meetings in late April 1707 before the last Parliament of England was prorogued. On 24 Jan. he attended a dinner hosted by Ossulston at his house in St James’s Square, where were also present such Whig luminaries as Wharton, Halifax, Charles Seymour, 6th duke of Somerset, and Evelyn Pierrepoint, marquess of Dorchester.51 They may have discussed the bill of union there, but Herbert’s only recorded involvement in the debates on this matter during that session was his role as teller in a division on a motion, made in a committee of the whole House on 21 Feb. 1707, to agree to the 18th article in the bill. Otherwise he continued in his role as a chairman of committees. On 21 December 1706 he chaired two committees of the whole House on supply bills; between 14 Mar. and the prorogation on 8 Apr. 1707 he led six committees on as many bills; and on 23 Apr. he was chairman for the bill against ‘drawbacks’ in the trade between England and Scotland.

Return with the Whigs, 1707–9

Perhaps his new standing as a commissioner of trade (with Stamford, from 25 Apr. 1707), part of the increasing presence and influence of the Whigs in Queen Anne’s ministry, encouraged Herbert in his ambitions, for in contrast to his comparatively lacklustre attendance in previous sessions of Anne’s Parliament, he came to nearly all of the meetings of the first session of the Parliament of Great Britain in 1707–8 (93 per cent), and became even more busy as a chairman of the committees of the whole during this session. Above all, he played a principal part in the long-running examination into the administration of the admiralty and the alleged mismanagement of the naval war effort through his control of the chairman of the committee of the whole investigating, over the space of over two months, the ‘state of the nation’. On 19 Nov. 1707 he chaired the committee examining the petition of the merchants complaining of the damage to their trade through the lack of convoys and cruisers, and from 3 Dec. 1707 to 11 Feb. 1708 he was the sole chairman of the 15 meetings of the committee of the whole House which examined the failures of the naval campaign at Toulon and of the land war in Spain, and the recent defeat at Almanza.

The primary target of the Whigs’ investigation into the Navy was the Tory George Churchill‡, leader of the council of the lord high admiral, George of Denmark, which body acted as the effective admiralty board. At the same time the Tories tried to use the committee on the state of the nation to attack the conduct of the land war in Spain, but under Herbert’s direction the committee still accepted Somers’ motion that there could be ‘no peace without Spain’ and Herbert was named to the committee established to draft an address to the queen emphasizing the importance of the Spanish campaign. The bulk of the relevant papers demanded by the committee were not delivered until the new year, and the committee’s most intense period was in January 1708, when separate committees on the navy and on the war in Spain were frequently convened. From 11 Feb. 1708 the committee’s meetings were continually postponed, and the last mention in the Journals of Herbert’s committee on the state of the nation is on 20 Feb. 1708.

At the same time as he was busy with this committee, Herbert also chaired (on 15, 18, and 20 Dec.) committees of the whole House on the bill for securing the duties of goods from the East Indian trade, on the annual supply bill for the land tax and customs revenue, and on the repeal of the Act of Security of the former Scottish Parliament. Between 12 Feb. and 26 Mar. 1708 he chaired a further 13 committees of the whole on almost as many bills. Some matters, such as the bill for cruisers and convoys and the East India Company bill, reflect his interests as a commissioner of trade. It was he who saw the Scottish militia bill through the committee of the whole on 25 Feb., before Anne vetoed it two weeks later – the last royal veto of a parliamentary bill. He also chaired the final meeting of the committee of the whole on the Scottish exchequer bill on 25 Mar., but it was the regular chairman on this matter, Stamford, who made the report to the House the following day. In another controversial Scottish matter, Herbert joined the ministry in protesting on 7 Feb. 1708 against the passage of the bill ‘to complete the Union’ which abolished the Scottish Privy Council, an instrument of royal policy north of the border.

Herbert also reported to the House twice with bills of private legislation – the estate bill of John Cecil, 6th earl of Exeter, on 12 Feb. 1708 (although there is no record of him ever having chaired this committee), and the bill for the sale of part of the estate of the late James Hamilton, on 24 March.52 He chaired the committee for privileges twice in this session. On 1 Mar. 1708 he led consideration of the peerage claim of the Dutchman William Ferdinand Carey, 8th Baron Hunsdon. On the penultimate day of the session (31 Mar.) he reported to the House that the committee had rejected the petition of the Catholic peer Marmaduke Langdale, 3rd Baron Langdale, against the deputy lieutenants of the East Riding of Yorkshire, who had searched Langdale’s house and confined him during the time of the abortive French invasion of Scotland.53 Herbert also told in the division on the motion to reverse the judgment in the appeal case of Pole v Gardner on 6 Mar. 1708.

The election of 1708 was marked by an unprecedented rancour in Bewdley, largely owing to Herbert’s aggressive acts since the disappointing outcome of the previous election. Throughout 1706–7 he had engaged in a number of quo warranto proceedings against the numerous ‘honorary burgesses’ who were being created to shore up Tory numbers in the electorate, and in one hearing it was judged that the 1685 charter was invalid because of a technical mistake in its wording. Over the strenuous opposition of the Tories in the corporation, Herbert and his supporters successfully petitioned for a new charter, by whose terms Herbert was personally to nominate the remaining 13 members who would make up a full complement of the capital burgesses.54

The new charter was issued on 20 Apr. 1708, almost simultaneously with the dispatch of writs for the new election. The local Tories hardly saw this timing as a coincidence and considered this a concerted attempt at Whig manipulation of an existing corporation for purely electoral reasons. Their suspicions were justified, as the new charter and Herbert’s nominations ousted all of the Tory capital burgesses and replaced them with Whigs. Herbert’s son Henry, the Whig candidate for the seat at the election, was even specifically named the borough’s recorder in the charter. The town had now effectively split into two competing corporations, each of which refused to recognize the other, and each returned its own candidate to Westminster. Winnington, the choice of the ‘old’ corporation, petitioned but in the Whig-dominated Commons was unsuccessful, and Henry Herbert was able to take his seat.

Flush from his long-sought victory at Bewdley, exultant in Whig domination in the ministry and in Parliament, and personally rising in importance through his role at the board of trade and in the investigations into the admiralty, Herbert had much to look forward to in the new Parliament when he sat for the first time at its third meeting on 18 Nov. 1708. After chairing a committee of the whole House on the land tax on 22 Dec., his promising future in public life was suddenly cut short by his unexpected death, ‘of a fever’, on 21 Jan. 1709. With unseemly haste, a number of suitors – Thomas Wentworth, Baron Raby (later earl of Strafford), Matthew Prior‡, and Robert Molesworth‡, among others – clamoured for his place on the board of trade.55 At the same time his son Henry Herbert, so often a disappointment to his exacting father, inherited the title and with it lost his hard-won place in the Commons. The Whig naval officer Charles Cornwall‡ won the ensuing by-election easily, but the matter of the Bewdley charter of 1708 was to become a cause célèbre for the resurgent Tories after 1710, and the 2nd Baron Herbert had to watch as his and particularly his father’s efforts to entrench a Whig and Herbert hegemony in the corporation were undone by successive decisions and resolutions – and flaming rhetoric – in the Tory Commons.

The 2nd Baron later explained his poverty by commenting on the embarrassed estate he inherited, wrecked by his and his father’s involvement in electoral contests in the western English counties: ‘When I began these disputes, I owed not one shilling in the world, and at my father’s death was near £6,000 in debt, the allowance I had from him being little or nothing. I won’t besides mention the encumbrances he left me, which were very great.’56 The encumbrances that Herbert placed on his son and sole executor were of the kind to cause resentment. It is almost certain that, after the death of his wife, Anne Ramsey, in 1685, Herbert had entered into a liaison with a widow, Frances Buckley, by whom he had four children – Frances, Henry, Richard, and Edward. He did not explicitly acknowledge them as his children in his will, but they were all born in the 1690s and the boys all bore names previously held by the four Barons Herbert of Chirbury of the first creation. Widow Buckley and her children were provided for generously in the will and one clause provided that, failing male issue of his other heirs, the young boys were to inherit the landed estate, on condition that they took the surname Herbert. Much of Herbert’s estate in Worcestershire, Shropshire, and Buckinghamshire was vested in trustees to pay for the Buckleys and the remainder – that set aside in his marriage settlement – went to his legitimate son Henry, and, failing his male issue, was to go to Herbert’s old friend and kinsman Torrington, and then to his nephew Charles Morley. It was Morley (who later changed his name to Herbert) who eventually inherited the estate when the Herbert of Chirbury title became extinct for the second time with the death without male issue of the 2nd Baron in 1738.

C.G.D.L.

  • 1 TNA, PROB 11/506.
  • 2 Epistolary Curiosities. ed. R. Warner, i. no. 68.
  • 3 CSP Dom. 1689–90, p. 493; Add. 37157, ff. 73–74; Epistolary Curiosities, i. 147–8 (no. 89); HMC Finch, iii. 169.
  • 4 Add. 72482, f. 150.
  • 5 Surr. Hist. Cent. Somers mss, 371/14/L5.
  • 6 Epistolary Curiosities, ii. no. 1.
  • 7 PA, HL/PO/CO/1/5, pp. 361–4, 367–9, 373–4, 378–9, 386–9, 391–3, 396, 398–404, 406.
  • 8 PA, HL/PO/CO/1/5, 391–2, 394–5.
  • 9 Browning, Danby, iii. 193.
  • 10 WSHC, 2667/25/7; Leics. RO, DG 7, Box 4959, P.P. 114 (iii).
  • 11 HMC Buccleuch, ii. 439–40.
  • 12 PA, HL/PO/CO/1/5, pp. 458–62, 465–8, 470–7; Luttrell, Brief Relation, iv. 209; HMC Lords, n.s. ii. 306–14.
  • 13 Epistolary Curiosities, i. no. 95.
  • 14 PA, HL/PO/CO/1/5, pp. 422, 459–61, 466–8, 471–4.
  • 15 PA, HL/PO/CO/1/5, p. 480.
  • 16 HMC Lords, n.s. iii. 90–92.
  • 17 PA, HL/PO/DC/CP/1/3, p. 141.
  • 18 PA, HL/PO/CO/1/5, pp. 571, 574, 576.
  • 19 Ibid. pp. 575–6.
  • 20 HMC Lords, n.s. iii. 230.
  • 21 PA, HL/PO/CO/1/5, p. 612.
  • 22 Epistolary Curiosities, i. nos. 96, 101, 102; Add. 37157, f. 85.
  • 23 Add. 70017, A. Harley to Sir E. Harley, 10 July 1698; Add. 70247, L. Lloyd to R. Harley, 31 Mar. 1702; Add. 61496, f. 102; HP Commons, 1690–1715, ii. 816–19.
  • 24 HP Commons, 1690–1715, ii. 705–6.
  • 25 Somers mss, 371/14/B/16.
  • 26 Northants. RO, Montagu (Boughton) mss 47/156 (Vernon–Shrewsbury Letterbooks, ii); Epistolary Curiosities, ii. no. 1.
  • 27 PA, HL/PO/CO/1/6, p. 91.
  • 28 HMC Lords, n.s. iv. 122–3; PA, HL/PO/CO/1/6, pp. 140, 141.
  • 29 PA, HL/PO/DC/CP/1/3, pp. 145–7; HMC Lords, n.s. iv. 213–14.
  • 30 HMC Lords, n.s. iii: 10–12; TNA, PRO, DEL 1/267; Luttrell, Brief Relation, iv. 312, 322, 327, 329.
  • 31 Epistolary Curiosities, ii. no. 6.
  • 32 Somers mss 371/14/B/20; HP Commons, 1690–1715, ii. 706.
  • 33 PA, HL/PO/CO/1/6, p. 193.
  • 34 Ibid.
  • 35 Epistolary Curiosities, ii. nos. 13–15.
  • 36 Ibid. ii. nos. 17–18.
  • 37 Sainty, Board of Trade, 29.
  • 38 Nicolson, London Diaries, 150.
  • 39 Ibid. 191.
  • 40 Ibid. 196–7.
  • 41 PA, HL/PO/CO/1/6, pp. 255, 261, 266, 292, 293, 316.
  • 42 PA, HL/PO/CO/1/6, pp. 363–4, 407, 408, 410–11.
  • 43 PH, xvi. 209; TNA, C 104/116, pt. 1, 18 Jan., 9, 11, 22 Feb., and 16 Mar. 1704; TNA, PROB 11/592.
  • 44 TNA, C 104/116, pt. 1, 13 Feb. 1704.
  • 45 PA, HL/PO/CO/1/7, pp. 52–53, 58–59.
  • 46 Epistolary Curiosities, ii. no. 19.
  • 47 VCH Bucks. iv. 354; Epistolary Curiosities, ii. no. 21; Bodl. Carte 79, f. 678.
  • 48 HP Commons, 1690–1715, ii. 706–8.
  • 49 Nicolson, London Diaries, 376.
  • 50 PA, HL/PO/CO/1/7, pp. 162–3, 183, 192.
  • 51 TNA, C 104/116, pt. 1, for 24 Jan. 1707.
  • 52 PA, HL/PO/CO/1/7, p. 321.
  • 53 PA, HL/PO/DC/CP/1/3, pp. 163, 168; HMC Lords, n.s. vii. 560, 594.
  • 54 Add. 61652, f. 49.
  • 55 Marlborough–Godolphin Corresp. 1212; Add. 61118, f. 112; Add. 61140, ff. 131–4; Add. 61155, ff. 188–9.
  • 56 Epistolary Curiosities, ii. no. 29.