After the capitulation of the Confederate armies, Colonel Herbert located at Greenville in the resumption of the law practice, where he was easily at the head of the local profession. A wider sphere opened to him in 1872, in Montgomery, whence he removed and entered into copartnership with Mr. Virgil Murphy, and later was associated with Messrs. Clopton and Chambers, with whom he was engaged till 1877, when he was elected to congress, his intention being to gratify an ambition by remaining in his seat but one session of two years.
But an event occurred which changed the current of Colonel Herbert's career. Samuel J. Randall, of Pennsylvania, had become speaker of the house, and there appeared on the scene Col. Tom Scott, of the same state, with a colossal scheme to procure a subsidy of $40,000,000 with which to build the Texas Pacific Railroad with branches extending to the most important southern points. It was a gigantic venture and wore a rosy front for the South, which region was seeking to get again afoot. On the delegation from the South, pressure was brought, because it was so plausibly promising and it was sought to be made appear that it was an undertaking which the South could not lightly esteem. The enginery of the scheme was far reaching in its operation, for the state legislatures were urged to take such action as would force the co-operation of their congressional delegations in its success. The Alabama legislature instructed its senators to vote for it, and requested its representatives to do so.
Knowing the source and purpose of the mammoth scheme, Colonel Herbert declined to support it. Every possible pressure was brought to bear, but Herbert was immovable. His maiden speech in congress was in opposition to Scott's plan. His argument changed the current of his life. The speech was printed and sent throughout his district, and though he protested against his renomination, he was returned to congress. Colonel Scott made another desperate effort to force the co-operation of Colonel Herbert, even employing learned and local counsel in Montgomery to induce the legislature to give imperative instruction to the state delegation to support the measure, and while this learned attorney alluded before the legislature to Colonel Herbert as misrepresenting the interests of the state, the assembly declined to instruct the members as desired, and the whole scheme was killed. Colonel Herbert now came to be recognized as one of the safest custodians of the interests of the state. While not a demonstrative gentleman, his merits came to be recognized in congress, as was shown by his appointment on the ways and means committee on which committee were such men as Reed, McKinley, and Morrison. His district kept him in congress as long as he would serve.