John Keating (judge)

He was born in Dublin, the second son of Edmund Keating of Narraghmore and Elizabeth (or Elinor) Eustace, daughter of John Fitzwilliam Eustace of Harristown, County Kildare, and sister of Sir Maurice Eustace, later Lord Chancellor of Ireland. He had one older brother, Oliver, who died in 1683. Keating, like his uncle Maurice, combined membership of the Church of Ireland with a notable tolerance in religious matters, which led to claims in later life that he was himself secretly a crypto-Catholic.[1] The Keating family later lived as permanent guests of Eustace on his Palmerstown estate, which he bought around 1647.

Keating graduated from the University of Dublin in 1655 and entered Lincoln's Inn in 1657: it was said that his knowledge of the law was deficient compared to that of his fellow students, although his friends attributed his neglect of his legal studies to his courtship of the widowed Grace, Lady Shuckburgh, whom he married in 1659.[2] In 1661 he returned to Ireland and became Deputy Clerk to the Irish House of Commons. This job involved a great deal of travel between Dublin and London, and Keating displayed impressive energy in performing his duties, on one occasion completing the return journey in twelve days in the depth of winter, for which task he was paid £200.[3]

He entered the King's Inns in 1662 and, despite earlier criticism of his deficiencies in legal knowledge, he quickly gained a reputation as a gifted barrister. His uncle the Lord Chancellor recommended him as a candidate for judicial office to James Butler, 1st Duke of Ormonde, the Lord Lieutenant of Ireland, whose friendship was then the usual path to the Bench. Keating was content for the time being with the minor position of Attorney General to the Duke of York; he admitted that he could not afford financially to give up his practice at the Irish Bar, and in addition he did not wish to arouse the envy of his older colleagues.

He acted as legal adviser to several members of the Butler dynasty. In 1675 he was raised to the Bench as Chief Judge (or Seneschal) of the Palatine court of Tipperary, a position which was in Ormonde's gift, which was generally regarded as a sinecure rather than a major judicial office (although for at least part of its history the Court's workload was heavy enough to require the appointment of a second judge, called the Master of the Rolls).[4]

Given Keating's previous reluctance to accept a seat on the High Court Bench, his appointment as Chief Justice of the Common Pleas in 1679, with no judicial experience other than as the palatine judge in Tipperary, may seem surprising. Even more surprising was the choice of a judge who was widely suspected of Roman Catholic leanings, since the anti-Catholic hysteria engendered by the Popish Plot was at its height, and it was rumoured that Keating himself might be accused of complicity in the Plot. It is likely, as Elrington Ball suggests,[5] that Charles II chose Keating precisely because his well-known tolerance in matters of religion meant that he was unlikely to succumb to the prevailing anti-Catholic mood. In particular, he was expected to quash an unfounded a charge of treason made against Richard Power, 1st Earl of Tyrone, and duly did so. As belief in the Plot waned, Keating, indicating his own scepticism on the issue, secured the acquittal of several defendants accused of playing a part in it.

In the following years he gained an impressive reputation for integrity, impartiality and mercy, and as a result he made political enemies on all sides. He was offered the office of Lord Chief Justice of Ireland in 1681, but declined it. He suffered seriously from overwork in the period 1681-2, as due to the death or illness of his colleagues he was often required to sit alone in the Common Pleas. He was also a Governor of the Erasmus Smith schools.

His reputation for mercy towards wrongdoers did not extend to those charged with cattle theft, which was regarded as a serious social evil at the time: in such cases he was prepared to drive hard for a conviction. In the leading case of R. v Cavenagh[6] in 1689, he broke with all precedent in refusing to allow two convicted cattle thieves to plead benefit of clergy for a first offence.[7] Both were hanged.

During the politically turbulent years 1688–1691, Keating was in a particularly difficult position since unlike some of his colleagues he was very anxious to retain office. During James II's first year in Ireland, Keating showed himself to be a staunch loyalist, praying publicly for the King and referring to the Glorious Revolution as an "invasion". James was seemingly impressed, and Keating was given a prominent place in the opening of the Patriot Parliament of 1689; yet within days his enemies had him dismissed from the Privy Council of Ireland He is also said to have resented being required to accept Catholic judges on the Common Pleas, despite his usual tolerance in matters of religion. [8]

The collapse of the Jacobite in the following year cause placed Keating in an impossible position, which helps to explain his frequently puzzling behaviour. He could not seriously have expected to be allowed to keep his office, yet he undoubtedly made friendly advances to the new administration. These advances met with a cold reception: Keating was dismissed from office, imprisoned for a time and threatened with impeachment. He committed suicide early in 1691, probably in a fit of depression, but was permitted a Christian burial in Palmerstown churchyard, where his wife and parents are also buried.[9]

In 1659 he married Grace Holte, daughter of the prominent landowner and Royalist Sir Thomas Holte of Aston Hall by his first wife Grace Bradbourne, and widow of Sir Richard Shuckburgh (1595-1656). Grace died in 1677; Keating erected a memorial to her in Palmerstown Chapel, Dublin, with an inscription paying eloquent testimony to their happy marriage. He erected a similar memorial at the parish church in Lower Shuckburgh, Warwickshire.

Sir Thomas Holte, father of Keating's wife Grace.

There were no children of this marriage (Grace was much older than her husband), but she had seven surviving children by her first marriage, including Sir John Shuckburgh (1635–1661), first of the Shuckburgh Baronets, Elizabeth who married Sir Edward Waldo of Harrow, London, and Grace, who married firstly Sir John Bernard, 2nd Baronet, and secondly Thomas Mariet.[10]

Historians on the whole have dealt kindly with Keating both as a man and as a judge. The more critical among them, like Elrington Ball, have accused him of clinging to office in an undignified manner, and the Cavenagh case shows that he could be ruthless enough when he thought there was a danger of a serious felon escaping justice. Yet there is impressive evidence of his good qualities. Duhigg,[11] in a celebrated passage, called him: "the great ornament of the Irish Bench...a great magistrate who in a slippery or stormy period exercised official station with mild manners and untainted integrity. This great man was calm, patient and humane in the trial of prisoners; clear, laborious and consistent in the discussion of civil suits; faithful to his King and country in the indulgence of political principles; and attached to God in the exercise of Christianity."[12]