Edward Herbert (judge)

Herbert was a younger son of Sir Edward Herbert, Lord Keeper 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 made a King's Counsel on 31 July 1677.

Returning to England he was appointed Chief Justice of Chester on 25 October 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'.

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 Act. 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.