Robert Day (politician)

He was born in County Kerry, a younger son of the Reverend John Day of Lohercannon, Tralee, Chancellor of Ardfert Cathedral, and his wife Lucy, one of the many daughters of Maurice FitzGerald, 14th Knight of Kerry and Elizabeth Crosbie.[2] The Day family had come to Ireland from East Anglia in the seventeenth century. Robert's grandfather Edward Day was a prosperous merchant; his grandmother was Ellen Quarry of Cork city. Among Robert's brothers was Edward Day, Archdeacon of Ardfert. Robert and Edward were close, and Edward's death in 1808 was a great blow to Robert.[3] A third brother John was Mayor of Cork in 1807.

Robert went to school in Tralee. He entered the University of Dublin in 1761, became a Scholar in 1764 and graduated Bachelor of Arts in 1766.[4] He entered the Middle Temple in 1769 and spent several years in London, where he was often in the company of his lifelong friend Henry Grattan.[5] He was a lively young man and not apparently much interested in learning the law, preferring to see the sights of London, attend debates in the British House of Commons and make frequent trips to the Continent.[6] He patronised the well-known Grecian Coffee House in Devereux Court off the Strand, where he is said to have enjoyed the company of Oliver Goldsmith. Despite his love of pleasure, his kindly nature is shown by his organising a charitable subscription for the relief of a poor family who were found starving near the Temple.[7] His obvious enjoyment of life came at a cost, as it caused him to neglect his legal studies. Despite his rise to the top of the legal profession, his ignorance of the law was proverbial.[8]

He returned to Ireland after spending five years in England. He settled into a more sedate way of life, having married Mary (Polly) Potts, daughter of Samuel Potts of London, in 1774.[9] He was called to the Irish Bar the same year. He became King's Counsel in 1790, and was a commissioner for revenue appeals and an advocate of the Irish Admiralty Court. Despite his early neglect of his legal studies and his reputed ignorance of the criminal law he became Chairman of the Dublin Quarter Sessions in 1790.[10] His success as a lawyer puzzled his acquaintances, who, though most of them liked him, had no regard for his legal learning. Daniel O'Connell, a good friend, said that "my poor friend Day is quite innocent of the law", and John Philpot Curran had a similarly low opinion of Day's legal ability.[11]

He entered politics, sitting in the Irish House of Commons as member for Tuam and later for Ardfert. He remained a close friend and political ally of Grattan and like him was a member of the popular drinking club called the Monks of the Screw.[12] He was a convinced supporter of Catholic Emancipation and of other measures, such as the abolition of tithes, and the discouragement of absentee landlords, which he hoped would benefit the Catholic peasantry. However, he supported the Act of Union 1800, which delayed Catholic Emancipation for a generation, something he is said to have regretted in later life.[13] He retained considerable political influence in Kerry even after he went on the Bench, especially in Tralee, much of which was owned by his son-in-law, Sir Edward Denny. In 1807 he effectively sold the Parliamentary borough of Tralee to the future Duke of Wellington. Wellington later complained about the expense involved in getting himself elected.[14]

He was appointed a justice of the Court of King's Bench (Ireland) in 1798, and almost immediately afterwards he was appointed to the Special Commission established to deal with the aftermath of the Irish Rebellion of 1798.[15] He was also the junior judge at the trial of the Sheares brothers, Henry and John, who were hanged in July 1798 for their part in the Rebellion. He visited England in 1807, where he fell seriously ill, and was unable to perform his judicial duties for almost a year. In 1814 he was one of the judges who sat at the trial of the publisher John Magee for seditious libel, where despite their close friendship he clashed bitterly with Daniel O'Connell, who was defence counsel.[16] In 1816 he presided at the much publicised quo warranto case, Rex v. O'Grady. In the same year he presided at a celebrated trial for murder of the Kerry attorney, Rowan Cashel. Cashel had killed Henry Arthur O'Connor in a duel, but was acquitted, as was usual at the time in an affair of honour.

As a judge Day was praised for his integrity but not his ability. Daniel O'Connell said that one could always win a case in front of Day by insisting on making the closing argument, since Day, by his own admission, generally agreed with whoever spoke last (as Geoghegan remarks, many barristers still employ O'Connell's tactics).[17] During the Napoleonic Wars he became preoccupied with the danger of revolution and his addresses to grand juries often consisted of a political harangue on the evils of sedition. J.P Kenyon notes that in England it was a long-standing tradition for the justice of the peace to address grand juries in a similar fashion.[18]

His personal friendship with O'Connell even survived O'Connell's fatal duel with John D'Esterre in January 1815. When Dublin was rife with news of the impending duel, Day was sent to arrest O'Connell, with the aim of preventing it. O'Connell insisted that he was not the aggressor in the matter, and Day, seemingly satisfied, merely bound him over to keep the peace, this making the duel inevitable. "Was there ever such a scene?" O'Connell asked later.[19]

He retired from the Bench in 1818. He lived at Merrion Square in Dublin city, at Loughlinstown House in south County Dublin, and at Day Place, Tralee.[20] He kept an interesting diary for many years. An extract covering the years 1808–1813 was published in 2002, and the full diaries, together with his grand jury addresses, were published in 2004.

He died in at Loughlinstown House in 1841, aged almost ninety-five. By his first wife Mary (Polly) Potts, who died in 1823, he had a daughter Elizabeth who married Sir Edward Denny, 3rd Baronet, and had six children including Sir Edward Denny, 4th Baronet.[21] Although Day's first marriage was apparently happy (certainly he always speaks affectionately of Polly in his diary), he had two sons, John and Edward, by Mary Fitzgerald, daughter of Bartholomew Fitzgerald, physician, of Bandon, County Cork, who became his second wife in 1824. The boys were born in the late 1790s during his first wife's lifetime, so Polly was surely aware of their paternity.[22] He made provision for both sons in his will, and they adopted the surname Day. Mary, who was a Roman Catholic, had lived with the family for many years as companion and later nurse to Polly.[23] She died in 1849.[24] John, their elder son, followed the family tradition of entering the Church. He inherited from the senior branch of the family their property at Beaufort, County Kerry. He was the grandfather of Charles Towry-Law, 4th Baron Ellenborough.

Ball, writing in the mid 1920s, describes Day as a man who was estimable in every way.[25] Whether Ball was aware of his unconventional domestic life is unclear (the first public references to Day's affair with Mary Fitzgerald seem to be in the 1938 memoir by Ella Day, who had married a descendant of the judge). Nonetheless, there is ample evidence of his kindly and charitable nature, and of his great gift for friendship. Kenny adds that the descriptions we have his pleasure-filled youth in London gives an attractive picture of a lively and fun-loving young man.[26]

• Ball, F. Elrington The Judges in Ireland 1221-1921 London John Murray 1926
• Burke Landed Gentry of Ireland Vol. 3 London 1849
• Burke's Peerage 107th Edition, reprinted Delaware 2003
• Day, Ella B. Mr Justice Day of Kerry 1745-1841- a discursive memoir Exeter 1938
• Day, John Robert Fitzgerald ("Fitz-Erin") Killarney Sketches George Herbert Dublin 1862 Reprinted with an Introduction and notes by JA Murphy 2011
• Ferguson, Kenneth Robert Day (1746-1841) Oxford Dictionary of National Biography Oxford University Press 2004
• Geoghegan, Patrick M. King Dan- the rise of Daniel O'Connell 1775-1829 Gill and Macmillan 2008
• Kenny, Colum King's Inns and the Kingdom of Ireland Irish Academic Press Dublin 1992
• Longford, Elizabeth Wellington- the Years of the Sword Panther edition 1971
• O'Carroll, Gerald, ed. Diary of Mr. Justice Robert Day of Kerry (1746-1841) North Munster Antiquarian Journal Vol.42 2002 pp. 151–174
• O'Carroll, Gerald Mr Justice Robert Day (1746-1841) The Diaries and Addresses to Grand Juries 1793-1829 Polymaths Press 2004