Sir John Jackson Smale (1 March 1805 – 13 August 1882) was a British lawyer and judge. He served as Attorney General and the longest-serving Chief Justice of Hong Kong.

Early life

Smale was born on 1 March 1805 in

Devon Devon ( , historically known as Devonshire , ) is a ceremonial and non-metropolitan county in South West England. The most populous settlement in Devon is the city of Plymouth, followed by Devon's county town, the city of Exeter. Devo ...

, England. He was the son of John Smale. He studied in

Manchester Manchester () is a city in Greater Manchester, England. It had a population of 552,000 in 2021. It is bordered by the Cheshire Plain to the south, the Pennines to the north and east, and the neighbouring city of Salford to the west. The t ...

and the

Inner Temple The Honourable Society of the Inner Temple, commonly known as the Inner Temple, is one of the four Inns of Court and is a professional associations for barristers and judges. To be called to the Bar and practise as a barrister in England and ...

. He was admitted by the

in 1828 but then qualified and practised as a solicitor. He was called to the bar of the Inner Temple in 1842. He practised at the Chancery Bar for eleven years from 1846 to 1857 and was noted as a law reporter, being one of the joint authors of "De Gex and Smale" (''Reports of Cases decided in the High Court of Chancery, by Knight-Bruce, V.C., and Parker, V.C.'', 1849–1853, 5 vols., with John Peter De Gex), and "Smale and Gifford".

Legal appointments

In 1860 he was appointed

Attorney General of Hong Kong The Secretary for Justice () is the head of the Hong Kong Department of Justice, the chief legal advisor to the Chief Executive of Hong Kong, and the chief law enforcement officer of the Government of Hong Kong. Before the Transfer of the So ...

. He arrived in Hong Kong Kong on 22 April 1861. On 14 June 1861, he was appointed as a member of the

Hong Kong Legislative Council The Legislative Council of the Hong Kong Special Administrative Region (LegCo) is the unicameral legislature of Hong Kong. It sits under China's "one country, two systems" constitutional arrangement, and is the power centre of Hong Kong' ...

. As Attorney General he was allowed to maintain a private practice and practised with much success. On 24 October 1866, he was appointed as Chief Justice of Hong Kong replacing

William Henry Adams William Henry Adams (1809 – 29 August 1865) was a British politician (Conservative Party), lawyer and colonial judge. His final appointment was as Chief Justice of Hong Kong. Early life Adams was born in 1809 and was the son of Thomas Adams ...

who had died in office. He served as Chief Justice until his retirement in 1881. Kalakaua_in_Hong_Kong

As Chief Justice he was described as "somewhat lacking in the qualities necessary to maintain the dignity of his high office." He was said to be "naturally of a temperament singularly impulsive and energetic and never succeeded in sinking the man and his natural propensities in the Judge; the consequence was that from time to time objectionable and occasionally disgraceful scenes were presented in court." The best example of this was the case of Pollard v The Chief Justice of Hong Kong where the

Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Aug ...

overturned a finding of contempt Smale had made against Edward Pollard QC on the basis that Smale had not told Pollard what the alleged contempts were before convicting him. Smale was knighted in 1874. Grave of Sir John Smale in Highgate Cemetery

Grave of Sir John Smale in Highgate Cemetery

Important issues

As Attorney General, Smale was instrumental in bringing about the de-amalgamation of the solicitors' and barristers' professions in Hong Kong. Until his arrival solicitors and barristers had been able to practise without restrictions. Wigs had also not been worn in court. Smale in his first appearance in court wore a wig. Subsequently, he worked for the repeal of the Amalgamation Ordinance that had allowed barristers and solicitors to practise in any capacity. As Chief Justice when admitting barristers he would remind them that they were to act only as barrister. An example can be found in

Nicholas John Hannen Sir Nicholas John Hannen (24 August 1842 – 27 April 1900) was a British barrister, diplomat and judge who served in China and Japan. He was the Chief Justice of the British Supreme Court for China and Japan from 1891 to 1900 and also served ...

's admission in 1868. Smale was strongly against slavery. In 1871, Kwok A Sing, a coolie on board a French ship the ''Nouvelle Penelope'' which had sailed from Macau killed the master and took over the ship landing in Pakha in China where the ship was abandoned. Kwok was arrested in Hong Kong to be extradited to China. Kwok made a

habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...

application seeking his release. Smale ordered his release on the basis that the ''Nouvelle Penelope'' was a slave ship and Kwok was entitled to take any necessary steps to secure his freedom.

Julian Pauncefote Julian Pauncefote, 1st Baron Pauncefote (13 September 1828 – 24 May 1902), known as Sir Julian Pauncefote between 1874 and 1899, was a British barrister, judge and diplomat. He was Permanent Under-Secretary of State for Foreign Affairs between ...

, the Attorney General of Hong Kong, then had him re-arrested to be tried for piracy. Smale again ordered his release on the basis the second arrest breached the first habeas corpus order. Kwok then sued Pauncefote for damages for false imprisonment under the Habeas Corpus Act. Kwok almost won with the British jury finding 4–3 in Kwok's favour, just one shy of the required majority of five. Smale's first decision was upheld by the Privy Council.

Marriages

Smale married twice, first to Anne Jackson (d. 1868) and then in 1873 to Clara Janson, a wealthy descendant of the Wensleydale I'Anson Quakers, in

St John's Cathedral :''This list is for St. John the Evangelist Cathedrals. For St. John the Baptist Cathedrals, see St. John the Baptist Cathedral (disambiguation)'' St. John's Cathedral, St. John Cathedral, or Cathedral of St. John, or other variations on the name ...

, Hong Kong.

Death

After his retirement in 1881, Smale returned to England, dying at his home on 13 August 1882. Upon news of his death reaching Hong Kong, his successor as Chief Justice of Hong Kong, Sir

George Phillippo Sir George Phillippo (1833 – 16 February 1914) was Chief Justice of Hong Kong in the late 19th century. He often attended the Legislative Council of Hong Kong sittings from around 1884 to 1888. Early life and education Phillippo was ...

, adjourned the court as a mark of respect.Norton-Kyshe, ''History of the Law of Hong Kong'', pp358-359 He is buried on the western side of

Highgate Cemetery Highgate Cemetery is a place of burial in north London, England. There are approximately 170,000 people buried in around 53,000 graves across the West and East Cemeteries. Highgate Cemetery is notable both for some of the people buried there as ...

References

{{DEFAULTSORT:Smale, John Jackson 1805 births 1882 deaths Burials at Highgate Cemetery English civil servants Chief Justices of the Supreme Court of Hong Kong Attorneys General of Hong Kong British Hong Kong judges People of British Hong Kong