Johnston, William John (1868–1940), barrister and judge, was born on 18 January 1868 near Magherafelt, Co. Londonderry, the eldest son of the seven children of James Johnston, merchant, and his wife, Sarah (née Davidson), of Belfast. The family motto was semper paratus. He attended national school in Magherafelt, then Methodist College, Belfast, when his father, who had prospered as a tea merchant, moved to that city to further his career in house building and property development, chiefly in the environs of the university. The family lived on the Malone Road, in a house built by his father in 1889 and named 'Dunarnon', after the Magherafelt townland of the family farm. Johnston graduated BA from the Royal University (Queen's) in 1888, MA in 1889 and LLB in 1891. He was admitted to King's Inns (Michaelmas 1889) and Gray's Inn (Hilary 1892), was awarded the John Brooke scholarship in 1892, and called to the bar in Michaelmas of the same year.
Commencing on the north-eastern circuit, he rapidly acquired a large practice, and was counsel to the Irish Commissioners of Public Works, the Treasury in 1907, and other public bodies. In 1900 he founded and edited the New Irish Jurist and Local Government Review, a weekly publication, and upon its cessation edited the Irish Law Times and Solicitors' Journal (motto: pro Rege, Grege, Lege) (1906–11). He was co-author with H. M. Fitzgibbon of The law of local government in Ireland (1899), author of Commentaries on the land purchase act 1903, The labourers' (Ireland) act 1906 and co-author with Muldoon of Old age pensions in Ireland (1908). A presbyterian, he was a home ruler, like his father, and the Liberal home rule candidate in Londonderry South in the December 1910 general election. He was defeated by John Gordon, KC, Liberal Unionist and sitting MP, by a margin of 333 votes. In the following year, he entered Pembroke Urban District Council, Dublin. He took silk in October 1911.
In November 1911 he was appointed county court judge for Monaghan and Fermanagh, subsequently acquiring the benign soubriquet 'Civil Bill'. He was county court judge for Monaghan and Louth (1921–4) and was appointed to the Irish judiciary committee and chairman of the compensation (personal injuries) committee in 1923. A supporter of the government of the Irish Free State, he applied for and was appointed to the high court on 5 June 1924, having, when Éamonn Duggan (qv) was appointed minister for home affairs, offered his services in the tasks that lay ahead. He advanced to the supreme court of Ireland on 7 March 1939, and retired on 17 January 1940.
Johnston was one of the few appointees to the superior courts of the Irish Free State with judicial experience, and his industry and breadth of learning is evident from the Irish Reports. He sat occasionally in capital cases in the central criminal court, or on appeal, most notably in several cases when the expansion of the M'Naghten rules on criminal insanity to encompass irresistible impulse was at issue. Elsewhere, all aspects of law and equity were within his remit.
Johnston published three learned articles in the Law Quarterly Review on legal historical matters. One of these, in volume 36 (1920), surveyed the arrival of the common law in Ireland, which marked 'the gradual displacing of that vast but indeterminate body of fluctuating maxims and juridical opinions called the brehon law' (p. 9). The article ended with a colourful surmise on the passage of the Anglo-Norman procession from Waterford to Dublin, which describes the 'primitive people [who] gazed open mouthed at the gay cavalcade' (p. 30). Johnston traced his lineage back to Normandy and then to Scottish covenanters.
Appropriately, he was the high court judge in all of the fishery cases of the 1920s and 1930s, most notably in Moore v. The Attorney General [1929 IR], which went three times from the high court to the supreme court and a failed attempt of an appeal to the privy council. After twenty-one days of hearings, Johnston J. decisively rejected the defendant's contention that no private fishery in the Erne at Ballyshannon was historically possible because such a private fishery was unknown to the brehon law. He noted that were the defendant's case correct then 'all the documents the plaintiffs have treasured so carefully are waste paper' (p. 231). Evidence called by the defendants from Professor Eoin MacNeill (qv) and Professor D. A. Binchy (qv) on the legal impossibility of a private fishery being a feature of the brehon laws in the mid-twelfth century were dismissed as plausible antiquarian speculation. Johnston offered that 'ancient landmarks cannot lightly be removed' (p. 244). The following year a not dissimilar action concerning the fishery at Ballina, Little v. AG & Ors. [1929 LR], evidenced similar arguments save that the arrival of the common law in Mayo prior to 1189 was established in law. Johnston, in a short excursus opined that were the defendants successful in establishing a free fishery such would be disastrous for the trade and prosperity of Ballina. The supreme court, Kennedy C. J. presiding, reversed Johnston's decision on the Erne fishery, holding that the brehon law did not encompass the feudal rights of a private ownership of fishing in tidal waters. This and the other fishery cases of the 1930s arguably deserve a discrete essay.
Johnston's writing style was characterised by clear English, a fondness for an almost epigrammatic style and a welcome dislike of latinisms. In 1931, in an equity case, Re Lynch's Estate [1931 IR], he opined that 'hard cases make bad law but sometimes they make good equity' (p. 525). In Blythe v. The Attorney General [1941 IR], a declaratory action concerning the guarantees of association and assembly, he asked whether the guarantees in the Irish Free State constitution were 'a real guarantee … for the protection of the citizens … or is it a mere statement of approbation such as we sometimes see attached to cheap watches and clocks' (p. 278).
He was not without some political nous, and when Blythe v. The Attorney General [1936 IR] ultimately came on for hearing in 1935 he deferred his judgment fourteen months until 31 July 1936, dismissing claims for declarations as to the lawfulness of the organisations in question as no party claimed otherwise. With a humorous, as well as political, nod he commenced by apologising for the delay in delivering it, a delay 'quite contrary to the constitutional rights that are set out in the Great Charter of Ireland promulgated in the first year of King Henry III' (p. 551) but added that by reason of the course of events in the two preceding years, the delay was not an unmixed evil. He concluded by remarking that the stated objects of the League of Youth were admirable but the same could be said of the Ten Commandments.
When a former judge of the Dáil Éireann supreme court, who had sat for two years and received a healthy pension of £500, sought to revive his salary of £750 per annum, notwithstanding the abolition of his office, Johnston noted that 'most of the young men who, risking everything, went out into the wilderness in 1919 would, I feel sure, have been content to say “and wilderness were Paradise enow”' (O'Crowley v. Minister for Justice & Ors. [1935 IR], p. 550). The plaintiff did not succeed.
Johnston was not, however, indifferent to appropriate claims from plaintiffs, and on another occasion was happy to hold that a rat bite contracted by an army officer while supervising recruits in a swimming pool entitled him to a wound pension (see White v. Minister for Defence [1936 IR]).
Given Johnston's grounding in the common law and his occasional references to the Great Charter it is apposite that his last written judgment in the supreme court, given a month before his retirement, should have been in the seminal case of The State (Burke) v. Lennon [1940 IR] (see under George Gavan Duffy (qv)). When the supreme court was invited to hear the appeal from Gavan Duffy's order releasing Burke, the majority of the court held that an appeal did not lie, relying on antecedent English authority. Johnston disagreed, pertinently observing that the constitution of 1937 represented a fresh start in respect of the fundamental principles to guide the country. More pertinently, he offered that he did not think 'that a further constitution – an unwritten one – was intended by the people of Éire to exist side by side with this written constitution'. In addition, he offered (at p. 179) that the practical effect of the decision of the supreme court was to graft half a dozen words onto the plain words of Article 34. Twenty-seven years later, a unanimous supreme court comprehensively and unanimously overturned the majority decision in Burke v. Lennon (see The State (Browne) v Feran [1967 IR]). It is somewhat fitting that a judge like Johnston, imbued with a profound respect for the common law and all the institutions of state, who had prized the Great Charter, recognised the terminus of the old order with the enactment of the constitution of 1937.
Johnston held judicial office in the union established in 1800, then in the Irish Free State, and finally in Ireland, where he served nine months in the supreme court. His support of the new administration and its institutions was manifest and he brought a shrewd intelligence to a broad range of legal issues in a new judiciary. On appointment to the high court not only was there a new indigenous constitution, and a new court of criminal appeal, but also the multifaceted fallout of the revolutionary period. The Irish Reports from Johnston's years of office are bulky. In January 1939 the Irish Law Times and Solicitors' Journal, which had discontinued its motto (see above) in 1937, offered its subscribers a photographic portrait of Johnston J., an uncommon honour.
Johnston married Kathleen King, second daughter of William King, of Belfast, on 2 September 1894 in Belfast; they had one son, Denis (qv). The 1939 Who's who listed Johnston's hobby as walking, although his son Denis thought writing his judgments was the greater hobby. Johnston lived in Dublin for most of his career, moving in 1901 to 54 Wellington Road, then 32 Elgin Road and finally in 1915 to 'Etwall', 61 Lansdowne Road. His judgments occasionally advert affectionately to the red roads of Ballsbridge. Etwall was occupied by Irish Volunteers for two nights in Easter week 1916; Johnston and his family were well treated, although held captive. The purpose of occupation was to cover strategic approaches to Shelbourne Road but the insurgents left quietly before the cessation of hostilities. The garden at Etwall was employed by Denis as a set for the cottage scene in the film Guests of the nation (1935).
Denis Johnston paints a sociable picture of his parents, who had a fondness for parties, theatre and music. The judge had a lifelong interest in the life, not works, of Shakespeare, and was elected MRIA (16 March 1921). He retired from the supreme court on 17 January 1940 and died at home on 29 November 1940, survived by his widow, Kathleen (d. 1944), and his son, Denis. There is a portrait by Seán O'Sullivan (qv), painted in 1936, in family ownership.