The Press.
London, England, 1858-11-06 00:00:00

THE PRESS, NOVEMBER 6, 1858.

the terms in which we ourselves had spoken of
that "change ; " seeing we described it as " a
" mighty change—amounting to something nearly
" approaching a revolution—in the Irish law of
" property." Why we do not conceive the change,
"however great in itself and extensive in its
"operation," to be " obnoxious to the reproach
" which the term revolution" (suggested by our-
selves in connection with it) "implies," we went
on to explain; and what we so said in explana-
tion constitutes the gravamen of our correspon-
dent's censure. We said,—and we now repeat,—
that "it was brought about neither in pursuance
"of abstract theories nor as the result of a
" forcible subversion of the established order of
" things, but was called for by an imperative
"necessity, as a remedy for acknowledged evils
"of the most serious character, and carried into
" effect with a due regard for existing rights." It
is against this last assertion that our correspon-
dent, while admitting in other respects the cor-
rectness ofour statement, " emphatically protests."
The retort courteous is,at all times, a disagreeable
form of argument ; and we cannot, therefore, help
regretting that it should be our obvious defence
in the present instance. Our correspondent calls
in question the "accuracy" of that portion of our
remarks against which he protests; in reply, we
put it to him whether the reasoning by which he
supports that protest is not itself altogether de-
ficient in "accuracy." For all that he alleges—
and far be it from us to gainsay it—as to the
hardships, the injuries,—the substantial injustice,
if he will have it so,—which the operation of the
Act inflicted on the landed proprietors, is not in-
consistent with the perfect truth and " accuracy "
of our statement that "the change in the law was
" carried into effect with a due regard for existing
" rights."
What, as touching " existing rights," was the
state of the case ? At the time when, to use the
language of Lord Chancellor NAPIER, "it be-
" came in Ireland a matter of great public policy
"to have encumbered estates purchased by
" solvent proprietors, who might be expected to
" discharge the duties correlative with the rights
" of property," there were in Ireland, in refer-
ence to this class of property, two distinct
" existing rights "—viz., the rights of the landed
proprietors, the mortgagors, and the rights of the
mortgagees. It is by an exclusive attention to
the rights of the former, and an entire forgetful-
ness of the rights of the latter, that our corre-
spondent has been misled. The right of the
landed proprietor, the mortgagor, consists in the
power which he possesses of retaining the property
so long as he can pay the mortgagee his interest,
and the principal if demanded, or satisfy him that
he runs no risk in allowing the mortgage to
continue. Beyond this the mortgagor has no
right. He has no right to retain the property
while obliged to confess his inability to discharge
his obligations towards the mortgagee ; nor has
he any right to require of a mortgagee who may
have, or think he has, reason to suppose his
property endangered, from whatever cause, by
the continuance of the mortgage, that he shall
abstain from enforcing his right as mortgagee.
The right of the mortgagee, on the other hand,
consists in the power which he possesses of de-
manding, in addition to the payment of interest,
the return of the money he has advanced on
mortgage. or, as the alternative, the surrender
of the property, which he is entitled to sell as
clearly as if it had been originally his own pro-
perty, subject always to an account to be ren-
dered by him of any excess of the produce of the
sale over the amount of his claim, and subject,
for this purpose, to the interference of a Court,
which was, at the time in question, the Irish
Court of Chancery. Beyond this the mortgagee
has no right. He has no right to seize and to sell
the property, or to require the mortgagor to sell
it, while the latter is prepared to pay off the
IllOrtgage.
Now we contend—and we doubt not that our
correspondent will, as everybody must, admit—
that the establishment of the Encumbered Estates
Court did not, in the slightest degree, interfere with
either of those " existing rights." What it really
did was to facilitate the enforcement ofthose rights
on either side. The machinery of the Irish Court
of Chancery, considering the delays which it oc-
casioned and the expenses which it entailed,
proved an obstruction, rather than a help, to the
enforcement of them. The proprietor who wished
• to proceed to a sale with a view to clear off is-