for the amendment which Mr. Baron Smith has moved, to the wholesome provisions of the existing law.

3. The third tract appears to have been published separately from the other two. This is not a theoretical but a practical statement, and relates to a case in which Mr. Baron Smith had the ill-fortune to differ from his brethren of the bench, and the good fortune, as we think, to be clearly in the right. A deed, as most of our readers know, must be proved by its subscribing witnesses. If they are dead or unavoidably absent, it may then, and not till then, be established by secondary proof. If there be a subscribing witness living and capable of being examined, he alone is a competent witness to the execution of a deed.'* This is the language of all the authorities. Nay, the admission on oath of a party to a deed cannot, even against himself, be substituted for the testimony of the subscribing witness.+ Such, says Mr. Selwyn, is the religious adherence to this rule.

The question, in the case which forms the subject of this pamphlet, was (to omit the obscure terms of the law) whether a certain deed had been executed in the form in which it now appeared to its execution there were two subscribing witnesses. One of those witnesses was produced in the usual form to prove the deed; but he disproved it: for, though he admitted his own signature, he swore that the deed had been altered since its execution, and that it now materially and substantially differed from that which he had witnessed. This failing to prove the identity of the deed, the party interested proceeded to call other persons to show that this witness was mistaken, and that the deed was in the same state in which it had been executed. To this proposition Mr. Baron Smith, before whom the cause was tried, objected as premature; because the second subscribing witness, the next best evidence on the subject, was not called, nor his absence accounted for. Nay it was notorious that this second witness was at hand, and for some unexplained, and therefore suspicious reasons, not produced. As his name was subscribed to the deed, and as he was within reach, the judge could not permit that evidence to be given, which would only be admissible if no such witness had existed, or if he were now dead; and he therefore concluded by nonsuiting the plaintiff, or, in plainer words, by deciding that he had not sufficiently proved the deed. Mr. Baron Smith's judgment appears to us so strictly and decisively correct, that we were astonished to learn, that, on an appeal to the court above, (the first decision having been at the Nisi Prius sittings,) the other three judges of the Exchequer not only differed from Mr. Baron Smith, but so decidedly and con* Peake, N. P. 30. Selwyn's Law of N. P. 474.

Abbot v. Pluinb. Douglas, 216. Cale v. Dunning. & East, 53.

clusively, that they would scarcely permit an argument on the subject; and rejected even his entreaty to postpone their decision till the morrow, that he might be the more fully prepared to state the grounds of his opinion. Mr. Baron Smith speaks with becoming respect of his brethren, and particularly of the Lord Chief Baron, whose coincidence in this hasty course he seems particularly to regret; but, in spite of his reserve on this point, he has betrayed so much of the secret of the prison house,' as to make us lament, 1st, that a decision should have been reversed which we think was right; and 2d, that it should be reversed under circumstances of haste, which we are sure were wrong. We know not where those who decided against Mr. Baron Smith's opinion are to find their legal* authority; but we are confident that no sufficient reason can be given to reconcile us to the refusal of the court to concede one day's delay in deference to the scruples of their learned brother.

But if we lament that the court differed with such marked scorn,'+ from the opinion of Mr. Baron Smith, we are obliged to confess that he has, in return, placed them in a situation of great awkwardness, by the publication of his ex parte statement. The Court of Exchequer, one of the great fountains of justice, must now either publish a pamphlet in its own defence against one of its own members, or it must lie under an imputation of haste and error. This consideration obliges us to revert to the sentiment which we expressed at the commencement of this article, and to repeat our doubts whether upon the whole it would not have been more dignified in the learned judge, more creditable to the eminent tribunal of which he is a member, and more beneficial to the general cause of justice and the laws, if Mr. Baron Smith had contented himself with the common and legitimate expression of his sentiments in court, and trusted for their preservation to the unoffending accuracy of the term reporter, and for their effect, to the impartial judgment of the whole profession.

After all, though, for his own sake and that of others, we rather discourage him from the farther publication of legal tracts, we cannot refuse to Mr. Baron Smith the praise of an interesting, though somewhat involved and affected style-of great ingenuity, and of that spirit of attachment to our ancient law, and of reverence for our holy religion, which eminently becomes a man of learning and of feeling-a judge, and a Christian.

Not assuredly in either Abbot v. Plumb, Douglas 216,) or Lowe and Joliffe, (1 Blackstone 365,) where the principle for which Mr. Baron Smith contends is admitted and enforced; namely that, until the evidence of all the subscribing wit nesses be exhausted, that of other persons is inadmissible.

It is Mr. Baron Smith's own strong expression.

ART. VII. History of Ancient Wiltshire.

By Sir Richard Colt

Hoare, Bart. Part II. from p. 96 to p. 178.

WE modant Colt Hoare in his excursions over the Wiltshire

E mount our antiquarian steeds once more to accompany Sir

downs. Little did I think,' says the worthy baronet,' when traversing in my juvenile days this woodland district in pursuit of a fox, I should at a more mature age, find so much food for inquiry and reflection in this apparently desert region.'p. 104. His hall at Stourhead was then, no doubt, like those of other country gentlemen, adorned with trophies adapted to his habits; but the antiquarian chase has enriched his mansion with monuments of curiosity and perseverance in elder life, such as no other residence in the kingdom bas to display for no such systematic collection was ever before made of the arms, the ornaments, and the sepulchral relics of our British ancestors. These are, moreover, endeared to the owner by the recollection that they are not purchases but discoveries; not the battered fragments of old and dispersed museums, but the personal acquirements of toil and research.

The present volume, which is illustrated with maps and engravings, in a style equally satisfactory and magnificent with the former, comprises four of those itinera into which, for the sake of his own accommodation in the pursuit as well as of distinctness in the narrative, the author has very judiciously divided his work.

In these itinera more barrows have been explored, and more British encampments, as well as villages discovered, so that as far as the work has advanced, we have, on sober and solid grounds, without any wildness of fancy, or latitude of conjecture, a distinct map of Belgic Britain. The general principles, however, of the work have been already considered, and though the discoveries of this volume are, perhaps, more rich and rare than those of the former, yet they are, as might be expected, homogeneous,' referring to the same tribe and period, and therefore to the same system of life.

But another object appears in our horizon, compared with which the barrow and the encampment sink at once into insignificance. We speak of the wonder of the west; the obscure, the magnificent, the mysterious Stonehenge. On this ground we expressed some apprehension lest the author should be carried out of himself; but we have the satisfaction of finding that he has conducted himself with all the sobriety, modesty, and discretion which became a modern antiquary in treating a subject of such difficulty, in which so many of his forerunners have failed. He states, with impartiality and distinctness, the several hypotheses of Giraldus Cambrensis, of Camden, of Jones, of Charlton, of Sammes, and of

Stukeley; besides those of some inferior writers, as to the origin of Stonehenge. On these as well as on some general considerations, connected with the history of this stupendous monument, we must, as the companions, not the servile followers of the worthy baronet, be indulged in some latitude of conjecture.

That Stonehenge was transferred, after the vain application of all the mechanical powers then known, by the magical skill of Merlin, from the plains of Kildare; and that it was placed on the downs of Ambresbury, to commemorate the slaughter of Aurelius Ambrosius and his fellow chieftains, we shall not insult the understandings of our readers by an attempt to disprove. But whether this extravagant fable of Geoffry or Giraldus do not contain, as is frequently the case, some remnant of historical truth; in other words, whether Stonehenge might not have been erected by human means, on that occasion, will demand at least a moment's reflection. Stonehenge, whoever were the builders, must, as is well remarked by Dr. Borlase, have been the result of peace and leisure.' But the Romanized Britons of this period had neither the ono nor the other of these advantages; abandoned and dispirited, dismayed by a recent and atrocious assassination, and harassed by continual attacks of the same barbarous enemy, they could have small heart for the undertaking of such a work: for who thinks of raising great national monuments for the dead while a war for existence itself is raging in the bowels of his country? On such an occasion a tumultuary barrow would have equalled their powers, and, in their conceptions, satisfied the manes of their slaughtered friends. Besides, had they possessed the means of achieving such a work, they wanted not skill to construct a memorial of another kind. They were in possession of a debased Roman architectureand no one makes a voluntary retrocession in science, to encounter anew all the difficulties which centuries had been occupied in removing. But to settle the point at once; barrows adjoining to Stonehenge, of a much earlier period than that of Aurelius Ambrosius, in which instruments of brass and other unquestionable remains of the first Belgic period have been discovered by Sir Richard Colt Hoare, were found to be formed of chippings from the stones which compose that vast edifice. It follows, therefore, that they were of later date. We shall wave, however, for the present the use which might be made of this decisive fact, in order to afford scope to the argument.

Inigo Jones was a man not of science only, but of original genius. Nay, more, he was, with the leave of some great names which followed, the first of English architects: but in his unhappy work on Stonehenge, he has established a fact, to which we have more than once adverted, the awkward and incongruous situation of

'artist commenced author.' For whether it were that his patron James the First, had decreed in the plenitude of his wisdom, that Stonehenge should be Roman, and therefore put the architect on the wretched necessity of defending such a position; or whether Inigo's evil stars directed him to the spontaneous adoption of such an absurdity-at all events, he undertook the office of demonstrating to mankind that the builders of Stonehenge and the Pantheon were the same people, and that the result of their labours on the plain of Ambresbury was a temple of Coelus.

Much of what has already been urged in refutation of the former opinion will apply to this; in addition to which it may be suggested that this proud people were not wont, in other instances, to depart from their own arts and improvements in order to compliment poor and barbarous provincials, whom they thought it a condescension to instruct. Neither were the anachronisms of capricious imitation then in use. Within our early knowledge, indeed, and while the Gothic gadfly was yet in the egg, a private gentleman looking out for some mode by which he might contrive to dispose of his superfluous income, determined upon constructing a Druid's temple. Accordingly, cattle were foundered, wains broken down, and masses of rock deposited in sloughs:-but wealth and perseverance finally overcame every obstacle, and,

'Above or Persian luxe or Attic art,

The rude majestic monument arose.'

The stones were ranged, the circle complete, and now that half a century has overspread the whole with a proper coat of mosses and lichens, it might defy the eye of an antiquary to detect the imposture, on the same principle on which the poems of Ossian have baffled criticism,-simplicity, and want of features. But such vagaries, which sport with the chronology of architecture, suited not with the haughty superiority of the Romans. When they built, it was in their own manner; the structure told its own story; and, on the whole, it would be no less absurd to ascribe Stonehenge to that people, than the temple of Vitzliputzli, at Mexico, to the Spaniards. But the wildness of his hypothesis was not the only disgrace which Inigo brought upon himself in this instance. He failed in his own peculiar department: his measurements were as inaccurate as his conceptions were crude; and the diligence of Sir Richard Hoare has proved that the cell, which the architect had laid down as an hexagon, is, in fact, a segment of an oval.

Next appears Mr. Aylett Sammes, as advocate of the Phoenicians. And here let it be understood that his whole fabric is built on the acknowledged but too general fact, that this active and industrious people traded to the south coast of Britain at a very early