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Trials and the shaping of identity in Tom Jones.


On 14 November 1743, while residing near Bath after the summer's Western Circuit of the Assizes, Henry Fielding wrote to invite his friend James Harris to visit him at his house at Twerton and attend the Friday ball at Bath. His invitation took the form of a mock-summons from "our Vice Snash for the said city [Bath]" to answer a "Plea of Gallantry of Dame Margaret Brown Wife of Robert Brown Bart. wherefore he the Fan of the said Margaret in his Presence dropt did not take up" (Battestin, Life 376). And in 1745, in defense of his friend Dr. John Ramby, who had created a storm of controversy among prominent physicians by criticizing the medical treatment his colleagues provided the dying Sir Robert Walpole, Fielding published a satiric "Charge to the Jury; or, The Sum of the Evidence, on The Trial of A.B.C.D. and E.F. All M.D. For the death of one Robert at Orfud, at a Special Commission of Oyer and Terminer held at Justice-College, in W[arwi]ck Lane, Before Sir AEsculapius Dosem, Dr. Timberhead, and Others, their Fellows, Justices &c" (Battestin, Life 396). One private and playful, one public and satiric, these minor and casual examples suggest how easily and comfortably Fielding moved between his personal and professional selves and between his professions of lawyer and author. Fielding worked as both lawyer and writer throughout much of his adult life, of course, and very early in these careers he assimilated the discourses of the law into his imaginative repertoire, including his novels. (1)

In this essay, I examine four instances of literal, disguised, or substitute trials in Tom Jones. Some trials in the novel, that is, are literal and explicit legal events which are part of the action; in other cases, an event might contain or replace a trial, revealing its underlying legal identity through allusion or language linking it to literal trials. Put slightly differently, I argue that the trial is one of the important "voices" in Fielding's novel, and so I make use of M. M. Bakhtin's description of the novel as being made up of a "diversity of voices and heteroglossia" that the novelist "orchestrates" to fulfill his own intentions, and more specifically, his claim that the comic novel parodies those specialized languages (Bakhtin 300, 299, and 311-12 respectively). But an analysis of the trial discourses embedded in Fielding's novel must also take into account the particular historical circumstances of the development of trials in England, including their epistemological implications, and the relationship of novels to other writings about trials. Fielding's main concern--perhaps the main concern of most novelists--is the struggle of the individual character within, and sometimes against, his society to define himself as a moral entity. To this end, Fielding explores the trial as a measure of character, but one that proves unreliable. He finally moves beyond trials, while assimilating what they have to offer, to a more individualized, flexible, intuitive, and narrative epistemology. In the end, only the novel itself, not trials and the law, enables us to know Tom Jones.


Bakhtin's theory of the novel, specifically of the comic novel, can clarify how Fielding's careers in law and literature intersect and interact. He describes two features that distinguish the function of social voices in the comic novel:

(1) Incorporated into the novel are a multiplicity of `language' and verbal-ideological belief systems--generic, professional, class-and-interest-group (the language of the nobleman, the farmer, the merchant, the peasant); tendentious, everyday (the languages of rumour, of society chatter, servants' language) and so forth ...; these languages are not in most cases consolidated into fixed persons (heroes, storytellers) but rather are incorporated in an impersonal form `from the author,' alternating (while ignoring precise formal boundaries) with direct authorial discourse.

(2) The incorporated languages and socio-ideological belief systems, while of course utilized to refract the author's intentions, are unmasked and destroyed as something false, hypocritical, greedy, limited, narrowly rationalistic, inadequate to reality ... Therefore what predominates in the novel are various forms and degrees of parodic stylization of incorporated languages. (311-12)

The novel, then, has no voice, no language, of its own separate from the languages (including those of the law) of the society of which it is a part. In their extant forms in society, their relationships to each other will obviously vary, with specific ones possibly expressing "socio-ideological belief systems" that are in harmony, in conflict, or independent of each other. Languages of law might conflict with languages of religion or languages of social reform--as in the slavery reform movement late in the century, for example. But some languages of the law might also coincide with or reinforce other languages--of the nobility, for example, in upholding class privilege. And some languages might be quite unrelated to each other, such as the language of society chatter and the language of commerce. Taken all together in their real world forms, the languages of society that Bakhtin describes constitute a cacophony in relation to each other: some conflicting, some unrelated, some mutually supportive. His model of languages in society is not an inherently conflictual one so much as a chaotic one.

Nor is the comic novel's appropriation of those languages fundamentally conflictual, even though it is skeptical of their accuracy and ideological validity, individually or collectively. First, Bakhtin argues, the comic novel parodically stylizes each individual language it uses. Stylization, which is not always parodic, simultaneously simplifies and exaggerates some central characteristics of the object being represented, much as a computer icon, for example, represents a disk or a program with a simple line drawing or logo, or as the lines of the Sydney Opera House billow like a ship's sails or as Denver International Airport forms white peaks like the Rocky Mountains. In textual terms, stylized language may become particularly self-conscious and self-referential in identifying the language from which the stylization is derived. A Hemingwayesque sentence, for example, is almost immediately recognizable both through grammatical structure and key words and phrases. And this latter case generally is a parodic stylization, that is, one that mocks, belittles, or otherwise points up the deficiencies of the object being represented. The novel, including the comic novel, in Bakhtin's own word, "orchestrates" some selection of these parodically stylized languages: it blends their sounds into a unique representation of its own, creating its own vision and ideology, its own unity, different from those of any of its constituent languages. Thus the authors' manipulation of society's languages in the novel does not set those languages in conflict against each other (except in the sense that harmony, in eighteenth-century terms, arises out of variety and difference). The novel, in fact, makes meanings by transforming the variously conflicting, harmonious, and independent languages that it selects from its social matrix into a non-conflictual, coherent, new whole.

Given this view of the comic novel, it stands to reason that Henry Fielding's unique personal and professional backgrounds would predispose him to make particularly prominent use of the languages of law, including trials; that he would be particularly well suited to present those languages informally as parodic stylizations and to critique their actual extant forms and powers in contemporary English culture; and as novelist in his own voice or in the orchestrated voice of the novel as a whole correct and blend them into an alternative socio-ideological system.


The language of trials and the representation of trials in language, then, constitute part of the heteroglossia of society available for the making of novels, but to understand Fielding's use of trial language, we must understand as much as we can the cultural meanings and functions of trials at his own particular historical moment. Trials and accounts of trials can be seen as forms of storytelling in a culture. That is, trials, like novels, are one of the ways a culture analyzes character, motive, and event so as to render judgment. But during the eighteenth century the rules of evidence and thus cultural beliefs about what constitutes "proof" are shifting, and Fielding's treatment of trials reflects this shift.

Published trial reports become one of the most popular forms of storytelling in the late seventeenth and early eighteenth centuries, a new way of storytelling that avoids both the generic stylizations and the overt didacticism of existing genres. The earliest and probably most representative of the genre are the Old Bailey Sessions Papers, by 1700 the best known and most popular of all accounts of trials. Published under the cumbersome title The Proceedings on the King's Commissions of the Peace, Oyer and Terminer, and Goal-delivery of Newgate, Held for the City of London, and the County of Middlesex, at Justice-Hall, in the Old Bayley. [relevant dates], the series ran uninterrupted, but with many different publishers, for nearly two hundred fifty years (Langbein, "Criminal Trial" 268). It originated as a commercial venture that, by the 1730s, had metamorphosed from scandalous and salacious tabloid journalism into something approaching formal and specialized legal reports (Langbein, "Criminal Trial" and "Shaping"). The longevity of the venture testifies to its popularity and thus its profitability in spite of each publisher's paying 100 [pounds sterling] per year for the imprimatur of the Lord Mayor (Harris 9).

The Old Bailey Sessions Papers differ from other contemporary criminal narratives in having no explicit allegiance, sponsorship, or agenda beyond the telling of the story itself. This becomes strikingly clear when we compare the Sessions Papers to another popular and well-known criminal discourse, the Ordinary of Newgate's Accounts of famous criminals (the full title is The Ordinary of Newgate, His Account of the Behaviour, Confession, and Dying Words of the Malefactors who were Executed at Tyburn [relevant date]) (Linebaugh; Harris 15 ff.). It is certainly true that many who read these accounts--like those who read the Sessions Papers and other popular accounts of crime--did so at least in part for the thrill of violent and often sexually charged stories, what Alexander Welsh calls the "moralized pornography of violence" (27). But the explicit sponsoring ideology of the Ordinary's Accounts was, of course, religious. All biographical background, character analysis, and narrative of events were presented ostensibly only to underwrite the moral orthodoxies which were their thematic center, usually in negative or cautionary form. This provided ready-made structure but limited the narrative and literary possibilities of the Ordinary's Accounts. With a few variations, these narratives become quite predictable in structure and theme, containing some or all of the following: they often begin with the criminal's birth and family background, then offer an account of how she or he fell into a life of crime, summarize the best known or most heinous or outrageous crimes, describe the criminal's capture, his or her later behavior in jail, the main features of the trial, including any speeches made by the criminal, the court's sentence, events of and behavior on execution day, including either a confession and a plea for God's mercy or a final defiant outburst, details of how he or she met death, concluding with a moralizing, evitational homily.

The Old Bailey Sessions Papers, on the other hand, appear to ignore a sponsoring ideology, simply recounting the trial--they claim to be shorthand transcriptions--and thus they obviate the need to impose a narrative structure appropriate for unfolding the character of the criminal, the events of the crime, and the consequences of both: that is provided in the structure of the trial itself. But the trial, of course, is implicitly a sponsoring ideology. By the last quarter of the seventeenth century, the criminal trial has become a sophisticated narrative mode which the culture has developed to provide means--including rules of evidence--for publicly examining events of the recent past and the characters involved in those events with the goal of evaluating them, namely, of judging one or more of the participants culpable or not culpable and thus deserving or not deserving punishment. Many of the normative values and epistemological assumptions of the society are embodied in the law and the mechanisms of the law, specifically in the methodology of the trial. The Sessions Papers, then, need make no narrative choice about how to discover and present the "truth" about events of the recent past: the trial format already provides that (Loftis).

Even as trial reports were becoming more and more popular, an important ideological shift was taking place in the law itself, a shift that Alexander Welsh has traced in his study of the late-eighteenth- and early-nineteenth-century novel. Central to Welsh's argument is the distinction between "testimony" and "circumstantial" proofs, the latter of which constitute "strong representations, which make the facts speak for themselves" and which "became the single most prominent form of narrative in the later eighteenth and nineteenth centuries" (ix). Witnesses can lie, be biased, or just wrong, but facts never lie, so inferences drawn systematically from facts are more reliable than direct testimony. (2) Welsh finds the immediate cultural source of this belief in the emerging theory and practice of the rules of evidence in English criminal trials during the eighteenth century, criminal trials that Henry Fielding would have known personally and immediately and that his readers would have known through trial accounts like the Old Bailey Sessions Papers. Tom Jones is Welsh's paradigmatic narrative: the protagonist is first "framed," he argues, by the false but believable testimony of characters and then successfully defended by Fielding's narrator acting as a manager of circumstantial evidence. (3)


Fielding systematically critiques (or to use Bakhtin's word, parodies) trials in various forms in Tom Jones, allowing their flaws and limitations to become clear against the unfolding of events, against the wider, surer understanding of an omniscient narrator, and against the orchestrated heteroglossia of the novel as a whole. In four scenes, each revolving around the character of Benjamin Partridge and leading up to the resolution of one of the novel's central questions, Tom's parentage, Fielding explores and tests the discourse of the trial. The first, the trial of Partridge before Allworthy for fathering the bastard Tom, relies on one mode of trial discourse (testimony). The second, which is also Partridge's second trial for sexual indiscretion, the trial before the King of the Gypsies for adultery, depends on facts (circumstances) rather than testimony, with different (although not better) results. The third is a disguised trial, trial discourse as drama, which focuses on Partridge's reactions to the performance of Hamlet. And finally, the pair of conversations, which, like the play, appear not to be trial at all, first between Allworthy and Partridge immediately followed by one between Allworthy and Mrs. Waters--the conversations which finally reveal Tom's true lineage--examines yet another form of legal truth finding (circumstance through narrative). Fielding orchestrates these explicit and implicit trials to create and define his new species of writing, finally showing trials as inadequate modes of representing and judging human character, and offering in their stead a more intuitive and personal narrative mode.

Fielding, of course, is the most blatantly self-conscious of the early novelists about his own enterprise, including his use of law and trials, as he shows in the intercalary chapters on the new species of writing heading each book of Tom Jones. Not surprisingly for an ex-playwright turned lawyer and novelist, he invokes both the law and the drama in these essays. In one famous early chapter, for example, he declares himself not "accountable to any Court of Critical Jurisdiction whatever," insisting instead that he is "Founder of a new Province of Writing," and thus, as ruler, both a maker of laws and chief administrator and judge of those laws; and later he declares that "The Critic, rightly considered, is no more than the Clerk, whose Office it is to transcribe the Rules and Laws laid down by those great Judges, whose vast Strength of Genius hath placed them in the Light of Legislators" (Fielding 159). Alternately, he claims the novel is a kind of theater: "The World hath been often compared to the Theatre; and many grave Writers, as well as the Poets, have considered human Life as a great Drama" (323); and he once treats his introductory essay as if it is a prologue to a play: "I have heard of a Dramatic Writer who used to say, he would rather write a Play than a Prologue; in like manner, I think, I can with less Pains write one of the Books of this History, than the Prefatory Chapter to each of them" (832). By invoking these discourses in his introductory essays, Fielding invites us to consider his novel in relation to law and drama, but, as I will show, in at least one important instance the latter becomes a disguise for the former.

Early in the novel, magistrate Allworthy formally tries Partridge for fathering, with Jenny Jones, the bastard Tom. The narrator's self-consciously legal, even legalistic, presentation calls our attention to standards of evidence in the presentation of stories that will lead to judgment, particularly highlighting Allworthy's limitations both as a legal practitioner and as a human being with limited access to the truth, to what really happened (Roscoe). Accused by Mrs. Wilkins, Partridge is brought before Allworthy where Mrs. Wilkins repeats her accusation, Partridge pleads not guilty, and evidence, primarily in the form of "testimony," is heard, mostly from Mrs. Partridge who testifies that Partridge had actually confessed to her. Allworthy apparently accepts her story at face value and berates Partridge for his "prevaricating and lying backward and forward" and says he "was sorry to see there was so wicked a Man in the World" (Fielding 100). Partridge seems already convicted.

But neither Allworthy's law nor his human reason is adequate. First the narrator comments on the legal issue when he pauses to "make a just Compliment to the great Wisdom and Sagacity of our Law, which refuses to admit the Evidence of a Wife for or against her Husband. This ... would be the Means of creating an eternal Dissension between them. It would, indeed, be the Means of much Perjury, and of much Whipping, Fining, Imprisoning, Transporting, and Hanging" (Fielding 100). Allworthy has not only allowed Mrs. Partridge's testimony to almost certainly and falsely convict her husband, he has not sought out other relevant evidence. Partridge makes this clear when he quite properly asks Allworthy to call Jenny Jones to testify. Allworthy delays judgment until Jenny can be brought before the court, but she, unfortunately, has disappeared and cannot testify. Allworthy suddenly regresses to his former position, hypothesizing what Jenny's testimony would have been and accepting Mrs. Partridge's testimony, thus finding Partridge guilty in spite of both legal and practical obstacles.
      Mr. Allworthy then declared, that the Evidence of such a Slut as she
   appeared to be, would have deserved no Credit; but he said he could not
   help thinking that had she been present, and would have declared the Truth,
   she must have confirmed what so many Circumstances, together with his own
   Confession, and the Declaration of his Wife, that she had caught her
   Husband in the Fact [in another instance], did sufficiently prove. (101)

While Allworthy seems to invoke "circumstances," he is clearly relying not on facts that speak for themselves but rather on Mrs. Partridge's biased testimony. If Allworthy's legal and logical powers are insufficient in this case, the narrator further confuses matters by first seeming to support Allworthy's decision and then immediately undercutting it. But in undercutting it, he offers us new information that neither we nor Allworthy possessed in time to apply to the decision.
      Certain it is, that whatever was the Truth of the Case, there was
   Evidence more than sufficient to convict him before Allworthy; indeed much
   less would have satisfied a Bench of Justices on an Order of Bastardy; and
   yet notwithstanding the Positiveness of Mrs. Partridge, who would have
   taken the Sacrament upon the Matter, there is a Possibility that the
   Schoolmaster was entirely innocent: For tho' it appeared clear, on
   comparing the Time when Jenny departed from Little Baddington, with that of
   her Delivery, that she had there conceived this Infant, yet it by no means
   followed, of Necessity, that Partridge must have been its Father: For, to
   omit other Particulars, there was in the same House a Lad near Eighteen,
   between whom, and Jenny, there had subsisted sufficient Intimacy to found a
   reasonable Suspicion; and yet, so blind is Jealousy, this Circumstance
   never once entered into the Head of the enraged Wife. (101-02)

Here the narrator is magistrate, the judge judges the judge: the narrator seems to be the wiser who both knows all the relevant facts and the relevant law and applies them in acceptable fashion. He clearly does rely on circumstances, that is, facts rather than testimony, but he misinterprets (or intentionally misrepresents) them just as seriously as Allworthy did. He seems to stand above the action and the characters of the novel, and to function as both lawmaker and judge, much like the figure Fielding invoked with his "Court of Critical Jurisdiction" metaphor. We learn from the narrator that Allworthy is wrong, but only hundreds of pages later do we learn for sure that the narrator's version is just as flawed--in fact it is another red herring--when Allworthy once again questions Partridge very near the end of the novel. Here one discourse and mode of representation of law, reliance on the testimony of an individual, has not only failed to discover the truth about Tom's parentage, it has promulgated a gross mistruth. And the narrator, seeming to correct that flawed legal methodology (testimony) and decision, also errs in applying an alternate methodology (circumstantial evidence). So Partridge's trial, with its constant self-referentiality and self-consciousness of the terms, concepts, and processes of trial language, is both stylized and parodic, so that trial language is shown to be a mode of discourse in the society which is, again in Bakhtin's words, "false, hypocritical, greedy, limited, narrowly rationalistic, inadequate to reality."

Later in the novel, in a very different environment, Partridge undergoes a second trial, for another, different act of sexual misconduct. Very much against his will, Partridge follows Tom out of a storm into a barn where they find a community of Gypsies. As Tom and the Gypsy king, having recognized each other's innate personal superiority, discuss abstractly the king's role in dispensing justice and the differences between Gypsy and English law, Partridge is caught "in a very improper Manner" with a Gypsy woman by her husband. He is hauled immediately before the king for a trial, where he offers a defense "which was indeed very trifling: For the poor Fellow was confounded by the plain Evidence which appeared against him" (670). The Gypsy king turns to Tom to set Partridge's punishment, and Tom confirms the king's low opinion of English law by offering money to pay for Partridge's shameful actions. The king, interestingly, allows Tom and the Gypsy husband to haggle over the amount of payment before he intervenes with more questions, this time aimed at the husband. He establishes that the husband had set up the entire incident, waiting until Partridge and the wife were in flagrante delicto before springing his trap. The Gypsy king now ignores Partridge and turns his judgment on his own subject, finding the husband guilty of selling the "Honour of his Wife for Money" and sentencing him to be shamed (the worst Gypsy punishment) by wearing the horns of the cuckold for one month and her to be called the Whore for the same time. Jones "greatly applauded the Justice of the Sentence" (671).

The Gypsy episode is one of the most peculiar in the novel, and it has been read by most modern scholars as allegorical and political, ranging from Battestin's reading of it as Fielding's anti-Jacobitical "parable" to Braverman's as a figuring of Whig history (Battestin, "Egyptian Majesty"; Braverman). The monarchal and political function that is emphasized throughout, however, is that of the king as magistrate. Before the character himself appears, we are told that "these people are subject to a formal Government and Laws of their own, and all pay Obedience to one great Magistrate whom they call their King" (667), in effect, subordinating other monarchal functions to that of magistrate. The law and the trial thus become central in this episode, and the fact that it is Partridge's second trial for sexual misconduct invites us to compare it to his first one.

The principles of evidence in this trial, in fact, differ essentially from those of the first one, but the result is equally inaccurate. If the first trial hinges on testimony, this one hinges on circumstantial, that is factual, evidence. Partridge, as has been noted, offers almost no defense because he was caught in the act, and no testimony can refute this. But the circumstances surrounding the facts, that is, additional facts as elicited from the husband and his spy by the king, force a reinterpretation of what seemed obvious misconduct. As attention shifts to the husband and wife and their punishment for entrapping Partridge, the initial facts (Partridge's misconduct) seem to just disappear. Tom approves the king's wonderful judgment, and the narrator ends with a discussion of the necessity--and rarity--of such judgment and honesty in any absolute monarch. But Partridge gets off not because he is innocent, but because the king shifts attention to a different, and in his view, worse offense. The fact is that this trial, relying on circumstances as ferreted out and interpreted by the Gypsy king, is just as wrong in its finding (or perhaps non-finding is more accurate) about Partridge as was Allworthy's. If he was wrongly convicted of sexual misconduct by Allworthy years earlier, he is wrongly exonerated for sexual misconduct by the Gypsy king now (but cf. Schonhorn). In fact he was caught with the woman, and the couple's scam does not change Partridge's actions. He is guilty, but reliance on factual circumstantial evidence leads to his dismissal, a result as incorrect, if perhaps not as unjust, as his first trial. This is a "parodic stylization" in a very different way than the earlier trial. It is equally self-conscious and self-referential in its culturally different legalism, and the pidgin English of the Gypsies simplifies and exaggerates their language of law, focusing attention on the different values in their justice system: dishonorable behavior vs. sexual misconduct as crime; shame vs. money as punishment; a different "wisdom" from the magistrate. That is, it calls attention to itself in a similar way by its very cultural difference: it is insistently a Gypsy trial embodying Gypsy values and assumptions. And it is recognizably another trial of Partridge for sexual misconduct, therefore inviting comparison to the earlier trial. This trial also falls far short of its goals, showing trial language again, in Bakhtin's words, "narrowly rationalistic, inadequate to reality."

The third trial in Tom Jones is embedded and thus somewhat disguised in another discourse, a drama, namely the performance of Hamlet attended by Tom, Partridge, and Mrs. Miller and her daughter, which occurs during a peculiarly quiet moment in the novel just before the revelations of Tom's apparently being a murderer and his learning from Partridge that he appears to have committed incest. On the one hand, the play's themes prefigure the crises Tom is about to face: Claudius is, in Hamlet's eyes, guilty of both murder and incest. And as a tragedy, the play reminds us of the potentially serious consequences of those crimes in the natural and social order, another instance of the doom that seems to hang perpetually over Tom's head. At the same time, it is a play that contains a play which is really a trial--"the play's the thing wherein we'll catch the conscience of the king." Partridge this time is not the subject of a trial, but rather an observer and commentator on the trial and the play that both contains and represents it. Yet, like Claudius, it is precisely as observer that Partridge is on trial: as Hamlet watches Claudius watch the dumbshow, Tom watches Partridge watch Hamlet, and he "expected to enjoy much Entertainment in the Criticisms of Partridge" (852). The narrator refers to Partridge as "Our Critic" (856), and at the end of the episode observes that "Partridge had afforded great Mirth" (857). The self-consciousness attendant on any play-within-a-play is magnified by both the narrator's and Tom's self-conscious attention to Partridge's simplistic and exaggerated responses to what he sees and hears. Fielding focuses our attention on two of Partridge's responses to the play: his fear of the ghost, and his inability to distinguish between actor and role, "real life" and dramatic representation.

One consistent feature of Partridge's character has been his fear of ghosts and goblins (see Schonhorn). In fact, this fear constitutes one link between this Hamlet episode and his encounter with the Gypsies. Partridge, from a distance in the stormy night, had feared that the Gypsies were ghosts or other supernatural creatures: "They can be nothing but Ghosts or Witches, or some Evil Spirits or other, that's certain" (664). At the play, he is afraid of the ghost of Hamlet's father even though he claims to know that the ghost is a character in a play and thus not a "real" ghost. As the play begins, Partridge is "all Attention, nor did he break Silence till the Entrance of the Ghost." At first he refuses to believe Tom that this is a ghost, because "Though I can't say I ever actually saw a Ghost in my Life, yet I am certain I should know one, if I saw him." But as the scene progresses, Partridge gives "that Credit to Mr. Garrick [playing Hamlet], which he had denied to Jones, and fell into so violent a Trembling, that his Knees knocked against each other" (853). Though Partridge claims to know "it is but a Play: And if it was really a Ghost, it could do one no Harm at such a Distance" (853-54), he nevertheless continues in fear, "the same Passions which succeeded each other in Hamlet, succeeding likewise in him" (854).

Partridge also confuses the world within the play with his actual world in judging who is the best actor in the play. When at the end he is asked "`which of the Players he had liked best?'" he answers indignantly "`The King [played by Mills] without Doubt'" (for actors' identities see Battestin ed., Tom Jones 856, n 2). His judgment reflects his earlier observation, in watching the play-within-the-play (that is the "trial" scene), that "`the King looked as if he was touched; though he is,' said he, `a good Actor, and doth all he can to hide it'" (856). Here he seems to recognize that he had been watching an actor playing the part of a character who is himself acting. But this is belied by his conclusion that "`though I was never at a Play in London, yet I have seen acting before in the Country; and the King for my Money; he speaks all his Words distinctly, half as loud again as the other--Any Body may see he is an Actor'" (857). Partridge is simultaneously too involved in and too distant from the play: he fears the ghost played by an actor, presumably because it is so "real," and at the same time judges that actor best who is most obviously acting, that is, the one who is least "real."

The main effect of the scene is to illustrate once again Partridge's characteristic naivete and poor judgment (he prefers Mill's acting to Garrick's), but we hardly need another instance of these qualities by this stage of the novel. If Partridge has been a victim of faulty "real" trials, here he has the opportunity to observe and react to a dramatic representation of a trial. Similarly, if he has been afraid of ghosts, here he has a chance to observe and react to a dramatic representation of a ghost. The two are intertwined here, since the ghost is the plaintiff who brings charges against Claudius, charges that lead to the "trial" which is scripted by Hamlet, who serves as judge, and staged by the players. Partridge's reaction to this represented trial confirms the failure of trials for Partridge from a new perspective. In Hamlet, the play-within-the-play succeeds as a trial, but as a play-within-a-play-within-a-novel, it fails as both play and trial, as judged by Partridge's obtuse and confused reactions. And although we are told that Tom and some other playgoers are amused by Partridge's reactions, those reactions are not corrected or qualified by the narrator's direct commentary, as are, for example, Allworthy's judgment at the first trial or the Gypsy king's performance as magistrate. Partridge's comical misapprehensions of the drama, uncorrected by the narrator, suggest once again a failure of a form of legal discourse, parodically stylized by being embedded in a drama, to adequately represent human characters and situations.

The Hamlet scene further contributes to the critique of trials in the novel because Fielding uses the language of ghosts and Partridge's fear of them to link the Hamlet scene to the later scenes when Partridge discovers Tom's similar crimes. When he visits Tom at the gatehouse after his arrest for wounding Mr. Fitzpatrick, Partridge arrives "with trembling Knees and a beating Heart" (873), and when (false) word arrives that Fitzpatrick is dead, Partridge "apprehended every Minute that his Ghost would enter the Room" (874). And a little later, when he crosses paths with Jenny Jones, when she is leaving Tom and Partridge is arriving, he comes "stumbling into the Room with his Face paler than Ashes, his Eyes fixed in his Head, his Hair standing [on] End, and every Limb trembling. In short, he looked as he would have done had he seen a Spectre, or had he indeed been a Spectre himself" (915).

Partridge's reactions to these events, the trembling limbs and knocking knees and language of ghosts, echo his similar recent reactions to Hamlet, which in turn echo the language of ghosts and fear of the supernatural in the Gypsy episode. The question at the center of the first trial of Partridge for fathering Tom, a trial which had seemed complete, will now be reopened because of the new charges against Tom.

The final instance I would like to examine consists of a pair of conversations which complete and correct the first trial while leaving its crucial question unanswered. While these conversations are not trials, they do present evidence to a magistrate (Allworthy) and they extensively employ language and concepts, specifically testimony and circumstances, central to the validity and trustworthiness of trial evidence. Partridge, a central figure in all three previous scenes, is examined once again, and this time Allworthy exonerates Partridge from the original charge of fathering the bastard Tom. Then Allworthy and Jenny Jones (who was pointedly absent from the first trial) finally discover the truth about Tom's mother. While these are neither actual nor disguised trials, the conversations represent what I believe is Fielding's extension of the trial into a new and different mode of judgment. They absorb those trial principles into a larger structure, one more like (but not yet the same as) the novel itself. In addition to testimony and circumstantial evidence, the conversations incorporate and contain, with no fixed rules of ranking or probability, apparently irrelevant narrative, history, peripheral and accidental information, correct and incorrect inferences, intuitive judgment, and highly personal and emotional reactions.

In the first conversation, Partridge denies being Tom's father--again. Allworthy protests, in language that explicitly reminds us of Partridge's first trial, whose evidence, for the moment, he still seems to find compelling: "`Will you yet deny what you was formerly convicted of upon such unanswerable, such manifest Evidence?'" (935). Partridge responds, oddly, with a summary of his life since that trial, none of which is directly relevant to the question of whether or not he is Tom's father, except that at the end of his tale he asserts again that he is not. His story is full of law and lawyers and legal problems, self-consciously and self-referentially keeping our attention focused on law and trials, but it is not dominated by legal modes of representation; it is instead a history, a narrative account of the facts of what has occurred. Briefly, his first conviction cost him his school, his clerkship to the minister, and when his wife died, his pension. He was also sued for another small debt, which consequently turned into a large debt, so he packed up and moved to Salisbury. There he served a lawyer, "`one of the best Gentlemen that ever I knew'" (936-37), before moving to Lymington where he served another lawyer. There his pig got into a neighbor's garden and he was sued at Assize for which he "`lay seven Years in Winchester Gaol.'" Here, luckily, Allworthy interrupts to speed the story up, forcing Partridge to skip to his return to Bristol and his recent reunion with Tom. Allworthy, however, is suddenly convinced that Partridge is telling the truth about not being Tom's father, and he decides this not on the basis of testimony (as he had done in the first trial) but upon the basis of circumstances, the conclusions that follow from the facts: "`What am I to think of this Matter?' cries Allworthy. `For what Purpose should you so strongly deny a Fact, which I think it would be rather your Interest to own?'" (938). Allworthy's view of Partridge's self-interest has reversed itself: earlier, that self-interest would have been to deny fathering Tom, but now it would be to claim fatherhood. And Partridge's new narrative does not otherwise explain why he would persist in his earlier denial. The issue of the original trial of Partridge is settled: he is not guilty of fathering Tom. We know who Tom's father isn't, but through all these trials we have made no progress in learning the important underlying fact of who Tom's father is.

As if the issue is now settled, Partridge changes the subject to the identity of Tom's mother, and in this conversation the legal discourse of circumstantial evidence becomes even clearer. Partridge says, "`I wish you had mistaken the Mother of this young Man, as well as you have his Father'" (938), and blurts out the story of Jenny's behavior that would seem to implicate Tom in incest. Tom's parentage is finally revealed when Jenny Jones, the witness missing from the very first trial, appears and talks privately with Allworthy. First, she identifies Tom's father: a Mr. Summers who here makes his first appearance in the novel; then, more shockingly, his mother: "`You had a Sister, Sir.'--`A Sister!' repeated he, looking aghast --`As there is Truth in Heaven,' cries she, `your Sister was the Mother of that Child you found between your Sheets'" (941). But again Allworthy's belief comes not from this testimony, the mode of legal discourse found wanting in the first trial, but from the facts. After Jenny provides the full story of how she and her mother helped Bridget deceive him, he says to her, "`surely you would not, and could not, have put together so many Circumstances to evidence an Untruth'" (942). When he says "would not," Allworthy seems to be drawing a conclusion based on his current view of Jenny's character; when he says "could not," he is relying on the principles of "connectedness and inimitability" of circumstantial evidence, the idea in the developing theory of legal evidence that chains of circumstances so compelling could not be falsified and thus must point to the truth (Welsh 29, 41).

But even circumstances are not absolute proof, and Fielding takes pains to show us the inadequacy of that principle alone. After persuading Allworthy about Tom's mother, Jenny gently chastises him for offering financial support for Tom's prosecution. Allworthy is shocked, and asks how she came to believe such a fact. A man unknown to her, she explains, had mistaken her for Mrs. Fitzpatrick and offered money from "a very worthy Gentleman" to further Tom's prosecution. Partridge later identified the man for her as Mr. Allworthy's steward, Dowling, so Jenny concluded that the offer must have come from Allworthy himself. When Allworthy corrects her, she replies, "`Yet you must pardon me, Sir, if from Circumstances I thought it could be no other'--`Indeed, Madam,' says Allworthy, `from Circumstances I am too well convinced it was another.--Good Heaven! by what wonderful Means is the blackest and deepest Villainy sometimes discovered!'" (943). Sometimes even circumstantial evidence can mislead judgments. Yet at the very moment this is demonstrated to him, Allworthy continues to draw conclusions based on such "circumstances." We should be suspicious by now both of Allworthy's judgment and of the principle of circumstantial evidence by itself.


Trials and the language of trials appear in a variety of forms in Tom Jones: Partridge's trial before Allworthy, his trial before the Gypsy king, and the trials embedded in a performance of and reactions to Hamlet and, modified, in narrative and conversation. And Bakhtin's theory of the comic novel is reflected in and exemplified by Fielding's practice. Fielding has orchestrated, that is, has systematically repeated and varied in different contexts and in different tones, one of the languages of the law, trials, that constitute a small part of the heteroglossia of society. Moreover, his use of the language of trials has not been "consolidated in fixed persons": that is, there has been no spokesperson for that language, although Fielding has attained a sort of unity by associating it with a single character, Benjamin Partridge, as he participates in a variety of trials. Instead, trials have been "incorporated in an impersonal form `from the author,' alternating (while ignoring precise formal boundaries) with direct authorial discourse." So actual trials are narrated or made subordinate to events in episodes or embedded and disguised as drama and discussed by characters, sometimes (but not always) followed by direct commentary by the narrator, but the narrator's own voice has never been the equivalent of the trial. Finally, the language of trials has been presented with "various forms and degrees of parodic stylization" so that it is "unmasked and destroyed as something false, hypocritical, greedy, limited, narrowly rationalistic, inadequate to reality." The "trials" are simplified and exaggerated, characterized by self-consciousness and self-referentiality, and in every case mocked, belittled, or shown to be deficient. None of the instances of trials has proven adequate to the purposes for which such trials are designed; indeed, most have been corrupt, wrongheaded, and destructive. And even though things turn out well for Tom, we cannot credit that to the adequacy of the trial as society's way of finding the truth and judging character.

Fielding's novels, including Tom Jones, are everywhere concerned with the nature of knowing, especially the difficulties of knowing such intangibles as accuracy of reports, biases in judgment, intention and motivation of action, and finally, moral character. His famous conflict with Richardson about Pamela, which took shape in both Shamela and Joseph Andrews, is finally about knowing whether a narrator's self-report of complex events and relationships is trustworthy. That Tom is handsome and good natured, that Paradise Hall is some sort of Eden, that Sophia is beautiful and desirable, that Western is an obsessed hunter and drunkard are easy, visible facts. But a large part of Fielding's point is that these obvious and visible facts can as easily obscure and complicate as clarify our grasp of the invisible but more important ones that we have no direct access to. Could Tom's external attractiveness conceal rather than reveal his moral qualities? Does Paradise Hall harbor its own serpents? Is Sophia's beauty a trap similar to Molly's, Jenny's, or Lady Bellaston's? Is Western, beneath the rough exterior, really a warm-hearted man who genuinely loves his daughter? Fielding teases us with these possibilities, and he explores a wide variety of approaches to learning the answers.

Tom's lineage, when discovered, answers one central question, the one implicitly asked in the title, The History of Tom Jones, A Foundling, but the answer to the literal question is finally not very important. In another not-so-literal sense, however, it is the crucial question of the entire book, and Fielding's orchestration of trials allows us to frame it: is Tom, the man with uncertain, unknown ancestry, as the narrator repeatedly claims, "born to be hanged," and if he is, is that fact a true judgment of Tom's character or an indictment of a society and a legal system that is incapable of finding discourses, modes of inquiry and representation, adequate to a true judgment of character? Tom could be hanged, that is, because he actually committed murder and incest, or because society through magistrates like Allworthy (one of the better ones) and the institutions of the law generally, especially trials, believe or claim to believe and represent that he has. The novel maneuvers Tom into situations that in increasingly complex ways lead both him and others to believe that he is guilty of those crimes. Varieties of trials to test this and related propositions are presented, found inadequate, and mostly rejected. In the process, the second sense of Tom's being "born to be hanged" is clarified by Fielding's treatment of trial discourses in the novel. Tom, while he may seem "fated" to be hanged, is much more vulnerable to the inadequacies of the discourses of his culture to accurately judge his character than he is to his ancestry. This is a serious indictment of a major institution of Fielding's own profession and thus of his culture for arriving at judgments of character and of guilt or innocence: trials are untrustworthy. We know that he was a relentless interrogator in the courtroom (Battestin, Life 500) and that he was on the whole a reform-minded justice, as evidenced by such documents as his Charge delivered to the Grand Jury and his Bill delivered to the Lord Chancellor recommending measures for preventing street robberies as well as his part in creating the Bow Street Runners (Battestin, Life 470 ff.). Such a critique of trial procedures, then, is at least consistent with his social ideology as it develops during his legal and artistic career.

In a sense, then, Fielding is assessing the trial as a mode of representation, suggesting that the more mono-vocal the language of the trial, the less reliable, while variations and combined forms are more likely to uncover the truth--or perhaps less likely to distort it. (4) Thus, the first trial of Partridge, a literal and formal trial, most misrepresents the truth. The Gypsy trial, still a formal trial but a mixture of English and Gypsy rules, cultural assumptions, and values, seems equally inaccurate but ironically more just. The trial as a mixed form--trial as drama--works within its dramatic setting, but is misunderstood in the "actual" world. The least formally restricted trial--in fact not a formal trial at all, although replete with trial language--consisting of conversation, accidental discovery, memory, narrative, and deduction from circumstance, finally gets to an approximation of the truth, but only an approximation. This valuation of trial as representational mode, or in Bakhtin's term voice, is consistent with Fielding's earlier position on the unreliability, because mono-vocal, of first-person point of view which he registered in his responses to Richardson. Fielding finally opts for the novel, this new form of multi-vocal aesthetic discourse, over the mono-vocal trial, as the most accurate way to judge character. Bakhtin's theory of the comic novel explains why this is so. Only the orchestrated novel as a whole--with its interplay of the language of trials with the other languages it contains, plus the long-term unfolding of events, the increasingly trustworthy understanding of an omniscient narrator--enables us as readers to reach an understanding of events and characters and to make sound judgments. (5) Only in the totality of his eponymous novel can Tom be judged completely and fairly.

The trial is only one voice among many, a small bit of the heteroglossia of the whole society, but it is one of the most insistent in claiming a special explanatory and analytical power at this particular historical moment. It is also a voice newly accessible to the reading public because of unique developments in the history of print culture, particularly the emergence and popularity of the Old Bailey Sessions Papers. The trials in Tom Jones make a unique contribution to this novel and to the novel as an emerging form. The techniques of this new narrative form mirror, but for Fielding transcend, the ideological shift in the law outlined by Alexander Welsh: the shift from reliance on "testimony" to a belief in deductions from "circumstances" or facts. Welsh finds this large cultural change most clearly present in changes in the rules of evidence in criminal trials and in novels in the mid-eighteenth century. It is a basic epistemological shift having to do with how we know the truth about events and characters and thus how we arrive at accurate judgments, an issue of crucial importance to both legal judgments and to the new form of narrative, the novel. But if Welsh finds Fielding's commitment to the new "circumstantial" view fairly complete, I find it less so. As I have shown, Fielding finally parodies that language, finding it flawed, if somewhat less so than testimony.

For these unique theoretical and historical reasons, I believe, the language of the trial, made public in such popular forms as the Old Bailey Sessions Papers, is especially important to the emergence of the novel. Like the novel, the trial, especially the criminal trial, is a mode of storytelling leading to judgment of character in action. Evolving its own rules for reliable representation, but for more limited purposes, the trial captures in a particularly focused way the developing epistemology of a rapidly changing society. Yet the trial is only one of many voices constituting the heteroglossia of eighteenth-century England. J. Paul Hunter, in Before Novels, illustrates and analyzes the extraordinarily wide variety of texts that were being published and read in the century before Defoe, Richardson, and Fielding, texts that created the conditions for both readers and writers that nourished this new literary form. While Hunter includes legal writings, he gives them no more prominence than many other kinds of texts, from newspapers to instructional manuals to religious polemic. Lincoln Faller, however, suggests that criminal literature is an especially important category in the century before the novel. He focuses on criminal literature, from accounts of trials to criminal biographies, teasing out the different cultural "myths" such literature addresses. In his postscript, however, Faller dismisses the forms of the texts as unimportant to the form of the novel, suggesting instead that their commonplace characters, setting, and the like prepared and conditioned readers for an open receptivity to novels. Michael McKeon, on the other hand, stresses the cultural importance of genre: "Genres fill a need for which no adequate alternative method exists. And when they change, it is as part of a change both in the need they exist to fill and in the means that exist for its fulfillment" (20). Hunter shows us that many kinds of texts created conditions for the novel to emerge and flourish; Faller shows us that criminal literature was an especially important subset of that literature; McKeon shows us that new forms, new genres evolve to meet new needs and to express new ideologies. One particular mode of criminal literature, trial reporting, uniquely contributed to the possibility of the novel. In the hands of comic novelist and practicing lawyer/magistrate Henry Fielding, the contemporary trial, familiar to his readers through its representation in such journalistic forms as the Old Bailey Sessions Papers, becomes a profoundly important cultural language which can be orchestrated, parodied, and finally transcended in creating the century's most important new literary form.



(1) One critical approach to this intertwining of law and literature in Fielding has been to trace the attitudes toward law in his literary works. The prevailing view is that his belief in the efficacy of the forms and procedures of the law to discover, explain, and control human behavior, and thus the social order, held firm until after his appointments to the magistracies of Westminster and Middlesex in 1749--within months of the publication of Tom Jones--but the horrors of human criminality and depravity he daily faced as magistrate progressively disillusioned him. Thus through the early works, up to and including Torn Jones (1749), the law (in spite of being satirized in its corrupt instances) generally makes a positive contribution to his comic vision. On the other hand, his developing view of its more fundamental failures contributes to the grimmer vision of Amelia (1751), the later legal tracts, and the Journal of a Voyage to Lisbon (1755) (Battestin, Life). Another approach has been to find evidence of Fielding's legal training and practice in his art, that is, to link his knowledge and practice of the law to the techniques as well as the themes of his fictions. Scholars have found evidence of legal techniques in such areas as the judgment of evidence in his fiction (Snow), the legal structures of thought he employs (Stephanson), his concept of character (Zomchick), and the similarities of his narrators to magistrates (Reilly).

(2) In one sense, of course, as Welsh notes, "all evidence is introduced in court through testimony," so that testimony and circumstance can never be a true dichotomy. But drawing on treatises on evidence by Locke, Bentham, and Burke, Welsh distinguishes between evidence given by witnesses of facts or events which they themselves perceived and which can be confirmed as opposed to evidence which is not directly perceived but is only inferred by witnesses (36).

(3) While I will disagree with Welch's reading of Tom Jones as presenting such a clear-cut paradigm of his legal-historical model, particularly of the function of trials and the narrator's function as magistrate, I find very persuasive his account of the development of rules of evidence and the importance of "circumstantial" proofs.

(4) Richetti makes a similar argument that Fielding espouses the values of the larger social network of friends, relations, and politics over the narrower rules of the law.

(5) This complexity comes close to being a secular version of the providential understanding of the literature of the eighteenth century presented by scholars such as Battestin, Providence; Williams; and Damrosch.


Bakhtin, M. M. The Dialogic Imagination: Four Essays. Ed. Michael Holquist. Trans. Caryl Emerson and Michael Holquist. Austin, TX: U of Texas P, 1981.

Battestin, Martin C. Henry Fielding: A Life. 2nd ed, London: Routledge, 1989.

--. The Providence of Wit. NY: Oxford, 1974.

--. "Tom Jones and `His Egyptian Majesty': Fielding's Parable of Government." PMLA 82 (1967): 68-77.

Braverman, Richard. "Rebellion Redux: Figuring Whig History in Tom Jones." CLIO 24.3 (1995): 251-68.

Damrosch, Leopold. God's Plot and Man's Stories: Studies in the Fictional Imagination from Milton to Fielding. Chicago: U Chicago P, 1985.

Faller, Lincoln B. Turned to Account: The Forms and Functions of Criminal Biography in Late Seventeenth- and Early Eighteenth-Century England. Cambridge: Cambridge U P, 1987.

Fielding, Henry. The History of Tom Jones, a Foundling. Ed. Martin C. Battestin. Wesleyan ed., 2 vols. 1749. Oxford: Oxford UP, 1975.

Harris, Michael. "Trials and Criminal Biographies: A Case Study of Distribution." Sale and Distribution of Books from 1700. Ed. Robin Myers and Michael Harris. Oxford: Oxford Polytechnic P, 1982. 1-36.

Hunter, J. Paul. Before Novels: The Cultural Contexts of Eighteenth-Century English Fiction. NY: Norton, 1990.

Langbein, John H. "The Criminal Trial Before the Lawyers." University of Chicago Law Review 45 (1978): 263-316.

--. "Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources." University of Chicago Law Review 50 (1983): 1-136.

Linebaugh, Peter. "The Ordinary of Newgate and His Account." Crime in England, 1550-1800. Ed. J. S. Cockburn. Princeton: Princeton UP, 1977. 246-69.

Loftis, John E. "Congreve's Way of the World and Popular Criminal Literature." SEL 36 (1996): 561-78.

McKeon, Michael. The Origins of the English Novel, 1600-1740. Baltimore: Johns Hopkins UP, 1987.

Reilly, Patrick. "Fielding's Magisterial Art." Henry Fielding: Justice Observed. Ed. K. G. Simpson. Totowa, NJ: Barnes and Noble, 1985. 75-100.

Richetti, John. "The Old Order and the New Novel of the mid-Eighteenth Century: Narrative Authority in Fielding and Smollett." Eighteenth-Century Fiction 2 (1990): 183-96.

Roscoe, Adrian A. "Fielding and the Problem of Allworthy." Texas Studies in Literature and Language 7 (1965): 169-72.

Schonhorn, Manuel. "Fielding's Ecphrastic Moment: Tom Jones and His Egyptian Majesty." Studies in Philology 78 (1981): 305-23.

Snow, Malinda. "The Judgment of Evidence in Tom Jones." South Atlantic Review 48.2 (1983): 21-36.

Stephanson, Raymond. "Fielding's `Courts': The Legal Paradigm in Tom Jones." English Studies in Canada 14.2 (1988): 152-69.

Welsh, Alexander. Strong Representations: Narrative and Circumstantial Evidence in England. Baltimore: The Johns Hopkins UP, 1992.

Williams, Aubrey. An Approach to Congreve. New Haven: Yale UP, 1979.

Zomchick, John P. Family and the Law in Eighteenth-Century Fiction. Cambridge: Cambridge UP, 1993.
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Author:Loftis, John E.
Publication:Studies in the Novel
Article Type:Critical Essay
Date:Mar 22, 2002
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