Henry Fielding – Tom Jones

LAW OF EVIDENCE

Tom Jones was written at a time when evidence law was in a state of flux. There was no settled law on validity, admissibility, or interpretation. Who was allowed to testify and in what circumstances varied from court to court. Sworn testimony was accepted as legal proof unless directly contradicted.¹⁸⁴ Witnesses could not be questioned about the truth of their testimony, nor could their credibility be questioned, and evidence of intent or motive was inadmissible.¹⁸⁵ Thus when Tom accuses Blifil of lying when he denies calling Tom a “beggarly bastard”, he does so “against all form of law”.¹⁸⁶ This “form of law” did not change until the end of the 18^th century.¹⁸⁷ As a barrister Fielding would have experienced the difficulties resulting from an inability to cross-examine witnesses about the truth of their evidence, or to request physical proof in place of a witness’s assertion. And as a magistrate he wrote: “[T]here is no Branch of the Law more bulky, more full of Confusion and Contradiction, I had almost said of Absurdity, than the Law of Evidence as it now stands.”¹⁸⁸ The following analysis identifies a number of those absurdities.

Section A considers Fielding’s use of circumstantial evidence to (mis)lead the reader. How (and why) Fielding encourages the reader as judge (or juror) to consider the issue of credibility despite its inadmissibility at the time forms part of the discussion of character evidence in sections B and C. Section D concludes the analysis of Squire Allworthy’s character, and links this to the preceding discussion of character evidence.

¹⁸⁴ The Trial of Thomas White, alias Whitebread and others for High Treason [Popish Plot case] (1679) T B Howell (ed) A Complete Collection of State Trials (vol 7, T C Hansard, London, 1816) 311, 358, 411–12. The defendants challenged the testimony of a key prosecution witness, Titus Oates, who said he had seen several letters implicating the defendants in the treason plot. Those letters were never produced in evidence. One of the defendants, John Fenwick, said: “[There] is nothing against us, but talking and swearing … .” Lord Chief Justice Scroggs responded: “For all things, all mens lives and fortunes, are determined by an oath; and an oath is by talking and kissing the book, and by calling God to the truth of what is said.” Fenwick and his fellow defendants were convicted and executed. Oates was subsequently tried and convicted for perjury; his appeal to the House of Lords was unsuccessful: The Trial of Titus Oates (1685) Howell State Trials (vol 10) 1079. See also, Carl R Kropf “Judgment and Character, Evidence and the Law in Tom Jones” (1989) 21 Stud in Novels 357, 360.

¹⁸⁵ Kropf, above n 184, 359–60.
¹⁸⁶ Tom Jones, above n 6, 102.
¹⁸⁷ Kropf, above n 184, 360–61.
¹⁸⁸ Fielding Robbers, above n 62, 161.