Justice Swan of the Ohio Supreme Court wrote in 1859 in Ex parte Bushnell:
[I]f a weary, frightened slave should appeal to me to protect him from his pursuers, it is possible I might momentarily forget my allegiance to the law and constitution, and give him a covert from those who were upon his track. There are, no doubt, many slaveholders who would thus follow the impulses of human sympathy; and if I did it, and were prosecuted, condemned, and imprisoned, and brought by my counsel before this tribunal on a habeas corpus, and were then permitted to pronounce judgment in my own case, I trust I should have the moral courage to say, before God and the country, as I am now compelled to say, under the solemn duties of a judge, bound by my official oath to sustain the supremacy of the constitution and the law, “The prisoner, must be remanded.”
According to the legal scholar Robert Cover, the Herman Melville novel Billy Budd was inspired by the moral struggle of abolitionist judges who were required to apply the Fugitive Slave Law. Melville’s father-in-law was Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court and the author of several such decisions. Readers will recall the character of Billy Budd was portrayed as “an angel of God.” But, because the law is the law, “the Angel must hang.”
I think this view is profoundly and dangerously mistaken. Fortunately, there is an alternative. Quoting from the 1869 Supreme Court case United States v. Kirby:
All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.
The common sense of man approves the judgment mentioned by Puffendorf that the Bolognian law which enacted, “that whoever drew blood in the streets should be punished with the utmost severity” did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony does not extend to a prisoner who breaks out when the prison is on fire — “for he is not to be hanged because he would not stay to be burnt.”