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

cumbrances, and free the remaining portion o
his estates from a burden which they were not
able to bear, was deterred by the prospect of in-
terminable difficulties and ruinous costs. The
mortgagee who wished to call up his mortgage,
and, in default of repayment of his advance, to
bring the mortgaged property to a sale, in order
to secure himself from loss, was deterred by the
same prospect.
To remove the obstruction thus offered by
the existing law to the enforcement of " existing
rights," was the simple effect of the Act which
established the Encumbered Estates Court ; and
under ordinary circumstances it would have
proved a boon to both mortgagor proprietors,
and mortgagees. It would have been a consider-
able, but it would also have been a decidedly
beneficial, " change" in the law of real property.
The term " revolution " could never have been
applied to it, directly or indirectly. But the
circumstances of the time were far from ordinary ;
and the result was " a mighty change, amounting
"to something nearly approaching a revolution,"
although not properly obnoxious to the reproach
implied in that term ; for this very reason, that
in reality it only rendered " existing rights"
operative, which, through the vice of the law,
had become practically inoperative. It will
scarcely be contended that if that state of the
law afforded a practical protection to the insol-
vent proprietor against the just and lawful
claims of the mortgagee, this protection consti-
tuted part and parcel of the " existing rights "
of the mortgagor. Justice, substantial justice,
assuredly did not require that the mortgagee
should be exposed to the loss of the money
advanced by him, in order that the insolvent
mortgagor might still shelter himself under a
state of the law which rendered the enforcement
of the rights of the mortgagee inconvenient,
hazardous, and possibly unproductive.
The real hardship—that which assimilated
the "change" in its results to a "revolution"
—arose, rot from any intrinsic injustice in the
change of the law establishing the new Court, but
from the calamitous position of affairs in Ireland
at the moment when the change was made.
It was precisely this calamitous position of affairs,
however, which rendered the change imperative
as " a matter of great public policy ;" and it is
reasoning in a circle to say that the cause which
rendered the change imperative was a reason for
not making the change. This is, in fact, what
the argument of our correspondent amounts to.
There was no " due regard," he says, " for
" existing rights." But the fact is that it was a
" due regard for existing rights "—viz., to render
their enforcement possible—which suggested the
change in the law, and made it a matter of urgent
necessity.
It would, doubtless, have been better if Par-
liament had made the change in the law, as our
correspondent suggests, " some ten or twelve
" years before the time when it was actually
" enacted" ; when, as he himself admits, " it
" would have been, beyond a doubt, a very great
" boon to all." But conclusions founded on ez
post facto wisdom are seldom just. It is easy,
but in another sense it is hard, to blame Parlia-
ment for not having foreseen the rapidity with
which ruin was about to overtake alike Irish
proprietors and Irish mortgagees, more especially
since that ruin was greatly accelerated by a visi-
tation of PROVIDENCE which no human foresight
could anticipate. Granting, however, that Par-
liament might have exercised greater prevision,
it does not follow that, when the necessity for a,
change in the law, acknowledged to be beneficial
in itself, became pressing, the change ought not
to have been made, because the same circum-
stances which imperatively demanded it, were
likely to cause it to operate, in some respects,
the reverse of beneficially.
What, then, was that state of things which
rendered the establishment of the Encumbered
Estates Court at once so imperative and so dis-
astrous? Proprietors deeply involved by as
accumulation of incumbrances were suddenly
called upon to meet, by virtue of " those duties
" which are correlative with property," an un-
usual demand upon them for the relief of a
starving peasantry. The natural result was the
immediate ruin of some, the impending ruin of
others, and a general panic as to the value of
Irish landed property. There was not only the
present difficulty of an enormous poor-rate ; there
was the prospective difficulty arising from scarcity