Launch speech by Kim Rubenstein, Professor of Law, Australian National University

National Library of Australia, Wednesday 29 November 2017

It is a great honour to formally launch Stephen Foster’s book Zoffany’s Daughter here at this wonderful institution, the National Library of Australia.

I do so acknowledging the traditional owners of the land on which we meet, paying my respects to their elders past, present and emerging.

And this statement of reconciliation, a statement affirming the importance of recognising history – and acknowledging past injustices, resonates in so many ways with the themes woven throughout this creative book.

While the story in Zoffany’s Daughter took place in the 19th century in a place very far from here, on the Island of Guernsey in the Channel Islands, the central story revolves around questions of past injustice – and in that context, injustices involving gender, law and the exercise of power – which is why I am presuming Stephen asked me to do the honours tonight!

As the Inaugural Convenor of the ANU Gender institute in 2011-2012 and in my continuing role on its Management Committee I have been involved in initiatives that have sought to challenge existing norms and expectations around gender and encourage and support and highlight research that makes transparent the gendered nature of so many aspects of society. This book resonates then from that perspective – a story about a woman who sought to challenge the gender norms of the time.

There are also links to this book that connect with my association with this institution in conducting a series of oral history interviews with Trailblazing Women lawyers leading to there now being over 50 whole of life interviews of trailblazing women lawyers, enriching the already extensive data base of research data here at the National Library of Australia.

In those oral history interviews, we get to hear the voices of those women themselves, and historians of today can immediately listen to the recent history within those interviews that have been made immediately accessible to the public. For those interviews currently with time embargoes on the release of their oral histories, historians in the future will later be able to access and hear these women’s voices – describing their own motivations, their own understanding of their lives as active participants in the public sphere. I believe this is key to creating a more just society and to ensuring the history of tomorrow properly includes and represents their experiences.

Cecilia Zoffany, the central figure in Zoffany’s daughter was a trailblazer who defied the norms and patriarchal structures of the time and the laws that dictated that in the same way women were then seen as property of their husbands, children were identified as the property of their fathers. Indeed as the back cover of this beautiful book proclaims Cecilia’s voice, protesting “I am only obeying the law that Nature has engraved indelibly in the heart of a mother, to never be separated from her child.’  But until this book’s appearance while we had some of Cecilia’s voice, as shared just before, we do not have in the archives, an oral history with Cecilia Zoffany of her own full account, in her own words, of her experience in 1825, when she sought to maintain custody of her youngest child, resisting her husband – the Reverend Mr Horne of Chiswick’s claim.

Zoffany’s daughter is Stephen Foster’s fleshing out of her experience, her motivations, her version, through her elder daughter Clementina’s created diaries recording their harrowing experience. There are contemporaneous accounts of those watching on, which were reported in the London Morning Chronicle in October 1825, and the report opens this book. This reminds us that this book is grounded in the ‘evidence’ of that period – evidence that is located in the newspapers of the time, and in the Court records of the time – but not in the diaries or accounts of the people themselves – which is what Stephen artfully fills out.

I am not sure that Stephen knew that the other connection I have with this book is through another ARC Discovery project I am involved with, which is the Court as Archive project. That project is the first scholarly investigation in Australia of the role of federal superior courts of record (SCORs) as significant national archives. Focusing on the Federal Court of Australia (FCA) as an example, it investigates how the role of the court as an archive has grown in importance and how that has been complicated by the court’s legal and democratic roles. As we know, Stephen’s book draws from the Court Archives of that time including the Decree of the Cour Royale of September 1825 and the addresses to the Court of Cecilia and the Comptroller as performed today so powerfully.

They are rich insights into the case, but they that don’t flesh out as Stephen’s book does, the fuller stories behind those formal records. Would other government records have been available? And even if they were, would they have even thought to include more of Cecilia and Clementina’s voices as Stephen’s book creatively does? I am interested in light of my own oral history work, and Federal Court as archive work to ensure we have a broader and inclusive view of what is included in the archives for the future of the telling of our society’s representations of law and power and the gendered perspectives on that story.

But without that, Stephen’s account forces us, as he does directly in the book, to engage with the question around the contested questions around history and fiction. This is explicit in his sections of the book titled “On Evidence” and “On history and fiction”. As Stephen reminds us (p 127) Cecilia’s story, as reported in the newspapers of the time, is full of detail, much of it confused and contradictory. “I have tried [he says] to make it comprehensible by adding further detail about events and people, sometimes drawing inferences about what happened when, sometimes creating a character out of little more than a name.”

Like Ann Curthoys’ blurb on the back, I too was engrossed from beginning to end – and as Curthoys and her partner John Docker write in their book Is History Fiction? “No one – including us – would do history, would pursue historical research, unless she and he thought they could arrive, however provisionally, at some kind of truth about the past. We think, however [they continue], that the temptation to declare that the historian can objectively establish the truth about the past is to be resisted. There always has to be a question mark hovering over any claim to have attained an objective, let alone scientific, status for one’s finding.” Stephen Foster engages directly with that paradox throughout and makes apt his statement at the beginning:

“Most of this story is true, so far as I know, none of it is false, much of it is fiction”.

And we are all the better for him having written it and I commend you to purchase a copy to enjoy its grappling of these questions and to learn more about Zoffany’s daughter. Thank you