I was gratified, amused and surprised the other day when one of my relatives gave me a legal diary that had been in the possession of my great-grandfather, Frederick Tupper Saussy (1875-1956). I don't know who wrote it: the printed headings on each page give dates for 1881, which someone has corrected to 1888; ink and penmanship seem nineteenth-century (pencil and steel pen rather than fountain pen; fine spidery script). That would make it the property of Joachim Radcliffe Saussy (1835-1912) or his son, another Joachim who went by the name of John. Maybe it was a logbook kept in the offices of Saussy & Saussy, Savannah, Georgia? The entries are mostly outlines of pleadings and lists of analogous cases. And the first entry reads as follows:
When I think about tippling, various kinds of uncertainty come to mind, but my ancestor had a serious purpose.
There are no natural phenomena to point out the will of Deity as to this. One day is subject to all the vicissitudes of weather as another is.
And I can find no law, federal or State, proclaiming any particular day as the Sabbath.
If then the Sabbath day specifically means Sunday, is must be so:
1st. Because this being a Christian community, the inference is that Sunday and the Sabbath day are synonymous terms:
but no indictment can be sustained on inference; the law must be fixed and certain particularly in an offense, such as is charged, which is not malum in se, but only malum prohibitum and made penal only by the operation of statute.
2nd. Or because this is a Christian government which by its autonomy recognizes and enforces Christian observances.
But the XI article of the treaty of the U. S. with Tripoli declares that “this Government is in no way founded on Christian principles.”
What is the effect of treaty law?
Article VI sec. 2 of the constitution of the U. S. declares treaties to be the Supreme law of the land and equal in status to the Constitution itself.
Whatever decisions on this subject have been made by the Supreme Court of Georgia, inconsistent with the terms of the treaty, are void—
1 Wash C C Rep 322.
6 Wheaton 1.
3 Dall 199.
“ “ 464.
If the statute had mentioned specifically any day by name, this question would not have arisen: for the Legislature unquestionably has the power and authority to distinguish any certain day for police regulations. But in a county and government like ours, where the laws fix no particular sabbath day and where there are thousands of citizens, enjoying equal rights, who observe different days as the Sabbath, who can say with certainty (inference being out of the question) what the Statute fixes when it vaguely mentions “the Sabbath day,” without specifying the name of the day? It is vague and uncertain and “Ubi jus incertum, ibi jus nullum.” [Where the law is uncertain, there is no law.]
A lot of pernicious nonsense has been circulated in the last few decades about the Founders' determination to create a Christian commonwealth. On questioning, advocates of this legal philosophy usually shrink back to the position that, well, their moral and ethical ideas were characteristic of the Christian tradition, and the domination of Christianity at the time was undoubted-- a weak enough position for anyone who reads around in the eighteenth century or knows the Sunday morning habits of George Washington. This old legal diary startled and delighted me for its proof that pragmatic secularism and awareness of religious difference were alive and well in Savannah circa 1900, not the first place I would go looking for evidence of such tendencies. (Ours is anything but a red-diaper family.) In particular, I appreciated the thought that went into this little argument about a not very momentous issue (the right to sell liquor by the drink on Sunday): the distinction between “Sunday” and “Sabbath,” which reminds us that there are people, Jews and Adventists for example, for whom the words are not synonymous; the reference to the Constitutional separation of church and state, which implies that religious calendrics have no role in determining civil obligations; and the “law of the land” argument which takes us back to 1796 and the United States' first experience in negotiating with a religious “other,” the Bey of Algiers. The Treaty of Tripoli engages our diplomacy on a firm secular footing:
And that's as it should be, because when people don't agree about the ultimate basis of right or the ultimate grounding of authority, and they think it matters, they have no business dealing with each other because sooner or later they will feel duty-bound to destroy each other. The incapacity to negotiate which the Treaty of Tripoli brushed to the side is reflected in miniature in the city of Savannah's fumbling with the term “Sabbath.” I don't know if Mr. Hussey won his claim, or if my ancestor was his attorney, but his willingness to test the boundaries of the law brought something good to everybody's sabbath day. Worth lifting a glass to, I think.
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