Having become attorney-general he was instructed by Charles I to take proceedings against some members of parliament who had been concerned in the passing of the Grand Remonstrance; the only result, however, was Herbert's own impeachment by the House of Commons and his imprisonment. Later in life he lived in exile with the royal family in Holland and in France, becoming Lord Keeper of the Great Seal to Charles II, an office which he had refused in 1645. He died in Paris. One of Herbert's son was Arthur Herbert, Earl of Torrington, and another was Sir Edward Herbert (c. 1648-1698), titular Earl of Portland, who was made chief justice of the king's bench in 1685 in succession to Jeffreys. It was Sir Edward who declared for the royal prerogative in the case of Godden v. Hales, asserting that the Kings of England, being sovereign princes, could dispense with particular laws in particular cases. After the escape of James II to France, James made Herbert his lord chancellor and created him Earl of Portland, although he was a Protestant and had exhibited a certain amount of independence during 1687.