Judge Robert Day’s liberal credentials were never in any doubt, well earned as they were during his youthful collaboration with Grattan and the Patriots of 1782 (he roomed with Grattan at the Middle Temple and they remained life long friends), and they are confirmed in his obituaries, as is his reputation for great oratory and learning. It was the other, often sordid, career that dogged his reputation, that of wheeler dealer up at Dublin Castle seeking appointments for political cronies in his native Kerry, and his – from our perspective – shameless sale of the Tralee seat at Westminster after the Act of Union to boost the estate income of his son-in-law Denny, the owner of town (George Canning bought the representation of Tralee from Day in 1802). Day was the double jobber par excellence, so much so that one up-and-coming barrister made great political capital out of it. This was Daniel O’Connell, the judge’s junior by nearly thirty years, though it should be placed to Day’s credit that he was a model improving landlord, while O’Connell presided over an estate where evictions were not unknown.
Judge Day’s reputation among constitutional historians rests on his collected ‘charges’, and among other historians on his copious diaries. He used his charges to Dublin and provincial grand juries as vehicles for his great knowledge of classical and modern history, and, at a time when Napoleon’s armies appeared unstoppable in Europe, to extol William of Orange’s ‘Glorious Revolution’ in England. Having exhibited his oratory he would then publish the contents in the press, but his good intentions sometimes backfired when they were read by sections of the population that hoped for a French invasion, and when editors considered some of the passages excessively prolix. At times the press became tired of him: ‘Judge Day’, complained The Freeman’s Journal on 25 March, 1815, ‘has sent more speeches to the Press than all the orators of the last thirty years’. Day had meanwhile collected the best of them, had his portrait painted in London by Edward Orme, and published the lot in a volume in 1808.
What burnished his reputation more than anything else seems to have been his humanity, testimony to which is the great amount of anecdotes he generated, greater in number than those of anybody else on the bench, except perhaps Judge Norbury (John Toler) with whom Day lived on the most convivial terms. Day could see the tragedy in Robert Emmet, whom Norbury condemned to die, reserving his sharpest condemnation for those, including bad magistrates and bad landlords, who instigated thoughts of revolution in the minds of young men. Another saving grace in Day was his secret empathy with Jacobitism. This is clear from his histories of Ireland and other writings in the RIA. His mother’s people, the FitzGeralds, Knights of Kerry, were leading Jacobites, domestically and as Wild Geese in Europe, and in the south-west of Ireland they were the centre of a political connection that promoted the removal of the last of the Penal Laws against Catholics. Day did his bit for the Catholics when he was an MP, but even his pro-Catholic credentials suffered tarnish for a time after Maynooth College failed to deliver the loyalism he expected from sections of the Catholic hierarchy, and when he became associated with the new Protestant ‘crusade’ of the 1810s and 1820s, because he believed Martin Luther’s revolution to be on a par with that of William of Orange in the story of modern democracy. (Today we might see his warnings against Bishop Hussey of Waterford as prophetic. Hussey, former President of Maynooth, had antagonised Day by discouraging Catholics from attending any but Catholic schools. Day appeared to foresee an excessive Romanisation of the Irish Church as a consequence.) In spite of the tensions it may not be going too far to claim for Day and his Jacobite, or Geraldine, party the achievement of having kept Kerry clear of rebellion in 1798.
When he retired from the bench in 1818, O’Connell was among the assembly at a feast in Tralee to honour him. Here is an extract from the press report of the occasion:
Mr O’Connell rose and begged permission to say a few words. He gladly seized that opportunity to concur in the testimony borne by his countrymen to Judge Day. On political subjects he had the misfortune to differ from that respected gentleman; but whilst he continued to maintain the independence of his own political opinions, he could not cease to regret that such a difference had existed; it was now at an end – the Learned Judge has now retired into private life, and there the most unmixed and heartfelt approbation followed his conduct as a Landlord, a Friend, and a Gentleman.
Years before, O’Connell had branded Day ‘a mass of corruption’, and the two had engaged in a very public controversy in 1815 arising out of Day’s use of the bench to criticise a speech of O’Connell at a Catholic meeting in Cork. The controversy seems to have precipitated Day’s resignation. O’Connell’s campaign to win Emancipation was still in embryo. Day would refer to him as the great Agitator, a choice of words that concealed a degree of sneaking regard, while at the same time mocking the concept of Emancipation for threatening all that Day stood for, as parliamentarian and judge: the unitary state inaugurated by William of Orange, founded on the liberties symbolised by Martin Luther, and elaborated to grant a subservient and tolerated status to Catholicism in the youthful patriotic programme of Grattan, Curran and Day.