Encroachment by Precedent

THERE is a principle of common law to the effect that a privilege, long continued, may come to be looked upon as a right. For example, if we permit a man to walk over our property once, we have granted him a privilege. But if we permit him to walk over it as often as he wishes, as long as he chooses, without warning of trespass, we may, in time and under some circumstances, have granted him a perpetual right_an easement, as it is legally called. And thus, by neglect or indifference, we may have lost the right to control what is ours. Rights and powers are frequently acquired and perpetuated by making persistent use of them, and frequently lost or forfeited by failure to use them. Often we take them for granted. We sometimes delegate them to others. We elect a public officer and assume that he will not exceed his powers and prerogatives; or we appoint a private agent and assume that he will serve our interests. And then we go our way and ask, in effect, not to be bothered. But all the history that men have recorded, and all the human nature that men have encountered have served notice on us that people who have been granted powers and privileges tend to exceed their assignments. And when someone has exceeded his assignment once, without check or restraint, without being called to account, he may assume license to do so again and again. And thus, by letting the camel get its nose under the tent, so to speak, precedents are established which come to have the effect of law, whether or not such law was ever enacted or intended. And when such encroachment is once under way, the people soon find that they have to exert themselves to set right what, by their laxity, has been allowed to get out of line. Anyone who uses delegated authority, anyone who represents others, must never be permitted to presume that such authority is permanently his or inherent within him_for the people, who have the right to delegate authority, have also the right to revoke it. And merely because a man has been permitted to speak for other men, it does not follow that he owns other men. If he assumes that he does, it may be partly his fault and partly the fault of those who have been careless of their rights, for to allow the privilege of trespassing once may easily come to be looked upon as the right to walk over anyone at any time.