/2/ But I
cannot see what is left of a principle which avows itself
inconsistent with convenience and the actual course of
legislation. The first call of a theory of law is that it should
fit the facts. It must explain the observed course of
legislation. And as it is pretty certain that men will make laws
which seem to them convenient without troubling themselves very
much what principles are encountered by their legislation, a
principle which defies convenience is likely to wait some time
before it finds itself permanently realized.
It remains, then, to seek for some ground for the protection of
possession outside the Bill of Rights or the Declaration of
Independence, which shall be consistent with the larger scope
given to the conception in modern law.
[212] The courts have said but little on the subject. It was laid
down in one case that it was an extension of the protection which
the law throws around the person, and on that ground held that
trespass quare clausum did not pass to an assignee in bankruptcy.
/1/ So it has been said, that to deny a bankrupt trover against
strangers for goods coming to his possession after his bankruptcy
would be "an invitation to all the world to scramble for the
possession of them"; and reference was made to "grounds of policy
and convenience.
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