there was no doubt that the spaniard’s devotion to his cause placed me in a considerable difficulty. i could not disguise from myself that he put forward a very strong claim for the consideration of one gentleman by another. it was only on hurriedly thinking the matter over that the weakness of his cause was apparent. had the whole affair been a private or personal one; had the treasure belonged to his ancestors, i should have found it in my own heart a very difficult matter to gainsay him, and be subsequently at ease with myself. i remembered, however, that the matter was a public one. the treasure was collected by enemies of england for the purpose of destroying england’s liberty, and so the liberty of the whole human race for which it made. it was sent in charge of a personal enemy of the country in a ship of war, one of many built for the purpose of invading and conquering england. in time of national stress, when the guns were actually thundering along our coast from the thames to the tyne, the treasure had been hidden so as to preserve it for future use in its destined way. though centuries had passed, it was still held in mind; and the very men who had guarded it were, whilst professing to be britons, secret enemies of the country, and devoted to her ultimate undoing. beyond this again, there was another reason for not giving it up which appealed to me more strongly than the[336] claim of my own natural duty, because it came to me through marjory. though spain was at peace with my country, it was at war with hers; the treasure collected to harm england might—nay, would—be used to harm america. spain was impoverished to the last degree. her treasuries were empty, her unpaid soldiers clamourous for their arrears. owing to want at home, there was in places something like anarchy; abroad there was such lack of all things, ships, men, stores, cannon, ammunition, that the evil of want came across the seas to the statesmen of the quirinal with heart-breaking persistence. america, unprepared for war at first, was day by day becoming better equipped. the panic had abated which had set in on the seaboard towns from maine to california, when each found itself at the mercy of a spanish fleet sweeping the seas, no man knew where. now if ever, money would be of value to impoverished spain. this great treasure, piled up by the latin for the conquering of the anglo-saxon, and rescued from its burial of three centuries, would come in the nick of time to fulfill its racial mission; though that mission might be against a new branch of the ancient foe of spain, whose roots only had been laid when the great armada swept out in all its pride and glory on its conquering essay. i needed no angel to tell me what would be marjory’s answer, were such a proposition made to her. i could see in my mind’s eye the uprearing of her tall figure in all its pride and beauty, the flashing of her eyes with that light of patriotic fire which i knew so well, the set of her mouth, the widening of her nostril, the wrinkling of her ivory forehead as the brows were raised in scorn——
“sir,” said i with what dignity i had, “the matter is not for you or me to decide. not for us both! this is an affair of two nations, or rather of three: the papacy,[337] the spaniard, the briton. nay, it touches another also, for the lady who shares the secret with me represents the country with which your nation is at war!” the spaniard was manifestly baffled; the red, hellish light shone in his eyes again. his anger found expression in a sneer:
“ah! so i suppose you do not propose to deal with the treasure, when found, as a private matter; but shall hand it over to your government to deal with!” the best answer to his scorn was complacency; so i said quietly:
“there again we are in a difficulty. you see, my dear fellow, no one exactly knows how we stand in this matter. the law of treasure trove, as we call it in this country, is in a most chaotic state. i have been looking it up since i undertook this quest; and i am rather surprised that in all the years that have elapsed since our practical law-making began, nothing has been done to put such matters on an exact basis. the law, such as it is, seems to rest on royal prerogative; but what the base of that prerogative is, no one seems exactly to know. and besides, in the various constitutional changes, and the customs of different dynasties, there are, or certainly there may be, barriers to the assertion of any crown right—certainly to the fulfillment of such!” he seemed staggered. he had manifestly never regarded the matter as other than the recovery of property entrusted to him through his ancestors. i took advantage of his mental disturbance; and as i myself wanted time to think, so that i might fix on some course of action which would suit marjory’s wishes as well as my own, i began to tell him the impression left on my mind by such study of the subject of treasure trove as i had been able to achieve. i quoted now and again from notes made in my pocket book.
“the scotch law is much the same as the english;[338] and as we are in scotland, we are of course governed by the former. the great point of difference, seen with the eyes of a finder, is that in scotland the fraudulent concealment of treasure trove is not a criminal offence, as it is in england. thus, from my point of view, i have nothing to fear as to results; for though by the general police act the finder is bound to report the find to the chief constable, the statute only applies to things found on roads or in public places. so far as this treasure is concerned, it may turn out that it can, in a sense, be no treasure trove at all.”—
“according to blackstone, treasure trove is where any money or coin, gold, silver, plate or bullion is found hidden in the earth or other private place, the owner thereof being unknown. if found upon the earth, or in the sea, it belongs, not to the crown, but to the finder, if no owner appears. it is the hiding, not the abandoning, which gives the crown the property.”—
“coin or bullion found at the bottom of a lake or in the bed of a river is not treasure trove. it is not hidden in the earth.”—
“the right of the crown is ... limited to gold or silver, bullion or coin. it extends to nothing else.”...
when i had got thus far the spaniard interrupted me:
“but sir, in all these that you say, the rights of the owner seem to be recognised even in your law.”
“ah, but there comes in again a fresh difficulty; or rather a fresh series of difficulties, beginning with what is, in the eye of the law, the ‘owner.’ let us for a moment take your case. you claim this treasure—if it can be found—as held by you for the original possessor. the original possessor was, i take it, the pope, who sent it with the armada, to be used for the conversion or subduing of england. we will take the purpose later, but[339] in the meantime we are agreed that the original owner was pope sixtus v. now, the popedom is an office, and on the death of one incumbent his successor takes over all his rights and powers and privileges whatever they may be. thus, the pope of to-day stands in exactly the same position as did pope sixtus v, when he sent through king philip, and in trust of bernardino de escoban the aforesaid treasure.” i felt that the words ‘aforesaid treasure’ sounded very legal; it helped to consolidate even my own ideas as i went along. “so, too, you as the representative of your own family, are in the same position of original trustee as was your great ancestor of which this record takes cognisance.” this too was convincingly legal in sound. “i do not think that british law would recognise your position, or that of your predecessors in the trust, in the same way as it would the continuation of the ownership, if any, on the part of the succession of the popes. however, for the sake of the argument, let us take it they would be of equal force. if this be so, the claim of ownership and guardianship would be complete.” as i paused, the spaniard who had been listening to me with pent up breath, breathed more freely. with a graceful movement, which was almost a bow, he said:
“if so that you recognise the continued ownership, and if you speak as the exponent of the british law, wherein then is the difficulty of ownership at all; should it be that the treasure may be found?” here was the real difficulty of both my own argument and don bernardino’s. for my own part, i had not the faintest idea of what the law might be; but i could see easily enough that great issues might be raised for the british side against the spanish. as i had to ‘bluff’ my opponent to a certain extent, i added the impressions of personal conviction to my manner as i answered:
[340]
“have you considered what you, or rather your predecessors in title and trust, have done to forfeit any rights which you may have had?” he paled and was visibly staggered; it was evident that this view of the question had not entered his mind. the mere suggestion of the matter now opened up for him grave possibilities. his lips grew dry, and it was with a voice hoarser than hitherto that, after a pause, he said:
“go on!”
“this treasure was sent, in time of war, by the enemies of england, for the purpose of her undoing—that is her undoing from the point of view of the established government of the time. it was in itself an act of war. the very documents that could, or can, prove the original ownership, would serve to prove the hostile intent of such owners in sending it. remember, that it came in a warship, one of the great armada built and brought together to attack this country. the owner of the treasure, the pope, gave it in trust for the cestui que trust, the king of spain to your ancestor bernardino de escoban, as hereditary trustee. your ancestor himself had the battleship san cristobal built at his own cost for the king’s service in the war against england. you see, they were all—the individual as well as the nation—hostile to england; and the intention of evil towards that country, what british law calls ‘malice prepense’ or the ‘mens rea’ was manifest in all!” the spaniard watched me intently; i could see by the darkening of his swarthy face and the agonised contraction of his brows that the argument was striking home to his very heart. the man was so distressed that, enemy as i felt him to be, it was with a pang that i went on:
“it remains to be seen what view the british law would take of your action, or what is the same, that of[341] your predecessor in the trust, in hiding the treasure in the domains of britain. as a foreigner you would not have, i take it, a right in any case. and certainly, as a foreigner in arms against this country, you would have—could have—no right in either domestic or international law. the right was forfeit on landing from your warship in time of war on british shores!”
there was a long pause. now that i came to piece out into an argument the scattered fragments of such legal matters as i had been able to learn, and my own ideas on the subject, the resulting argument was stronger than i had at first imagined. a whole host of collateral matters also cropped up. as i was expounding the law, as i saw it, the subject took me away with it:
“this question would then naturally arise: if the forfeiture of the rights of the original owner would confer a right upon the crown of britain, standing as it does in such a matter as the ‘remainder man.’ also whether the forfeited treasure having been hidden, being what the law calls ‘bona vacantia,’ can be acquired by the finder, subject to the law relating to the royal prerogative. in both the above cases there would arise points of law. in either, for instance, the nature of the treasure might limit the crown claim as over against an individual claiming rights as finder.”
“how so?” asked don bernardino. he was recovering his sang froid, and manifestly was wishful to reassert himself.
“according to the statement of don bernardino, which would assuredly be adduced in evidence on either side, the treasure was, or is, of various classes; coined money, bullion, gems and jewel work. by one of the extracts which i have read you, the crown prerogative only applies to precious metals or bullion. gems or[342] jewellery are therefore necessarily excluded; for it could not, i think, be claimed that such baubles were contraband of war.”
“again, the place of hiding may make a bar to crown claim as treasure trove. according to the cipher narrative the place of hiding was a sea cave. this could not be either ‘on’ the ground, which would give title to the finder; or ‘in’ the ground which would give crown claim. but beyond this again, there might arise the question as to whether the treasure should in any way come into the purview of the law at all. you will remember, in one of my excerpts blackstone excepts the sea from the conditions of treasure trove. it might have to be fought out in the law courts, right up to the house of lords which is our final court of appeal, whether the definition of ‘sea’ would include a cave into which the tide ran.” here i stopped; my argument was exhausted of present possibilities. the spaniard’s thought now found a voice:
“but still ownership might be proved. our nations have been at peace ever since that unhappy time of the invincible armada. nay more, have not the nations fought side by side in the peninsula! besides, at no time has there been war between england and the pope, even when his priests were proscribed and hunted, and imprisoned when captured. the friendship of these countries would surely give a base for the favourable consideration of an international claim. even if there may have been a constructive forfeiture, such was never actually exacted; england might, in her wisdom, yield the point to a friendly nation, when three hundred years had elapsed.” here another idea struck me.
“of course” i said “such might be so. england is rich and need not enforce her right to a treasure, however acquired. but let me remind you that lawyers are[343] very tenacious of points of law, and this would have to be decided by lawyers who are the servants of the state and the advisers of the governments. such would, no doubt, be guided by existing principles of law, even if the specific case were not on all fours with precedents. i learn that in india, which is governed by laws made by britons and consonant with the scheme of british law, there is actually an act in existence which governs treasure trove. by this, the magisterial decision can be held over to allow the making of a claim of previous ownership within a hundred years. so you see that by analogy your claim of three hundred years of peace would put you clean out of court.” we both remained silent. then the spaniard, with a long sigh, rose up and said courteously:
“i thank you senor, for the audience which you have given to me. as there is to be no rapprochement to us, what i can say may not avail. i must now take my own course. i am sad; for what that course may have to be, i know not. i would have given my fortune and my life to have acquitted me honourably of the trust imposed on me. but such happiness may not alas! be mine. senor” this he said very sternly “i trust that you will always remember that i tried all ways that i know of, of peace and honour, to fulfill my duty. should i have to take means other to discharge my duty, even to the point of life and death, you will understand that i have no alternative.”
“would you take life?” i said impulsively, half incredulous.
“i would not scruple regarding my own life; why should i, regarding that of another?” he said simply, then he went on:
“but oh! senor, it is not the taking of life, my own or another’s, which i dread. it is that i may have to[344] walk in devious ways, where honour is not; have i not already tasted of its bitterness! understand me that this duty of guardianship of the trust is not of my choosing. it was set to me and mine by other and greater powers than ourselves, by the vicegerent of god himself; and what is ordained by him i shall do in all ways that are demanded of me.”
i was sorry for him, very sorry; but his words made a new fear. hitherto i had been dealing with a gentleman, and there is much protection in this thought to any opponent. now, however, he calmly announced that he would act without scruple. i was in future to dread, not fair fighting alone, but crooked ways and base acts. so i spoke out:
“am i not then to look on you as a man of honour?” his face darkened dangerously; but all its haughty pride was obliterated by a look of despair and grief as he said sadly:
“alas i know not. i am in the hands of god! he may deal mercifully with me, and allow me to pass to my grave not dishonoured; but for myself my path has been set in ways that may lead i know not whither.”
somehow his words made me feel like a cad. i didn’t mind fighting a man fair; or indeed fighting him anyway, so long as we understood the matter from the first. but this was against the grain. the man had shown himself willing to give up everything he had, so as to fulfill his trust and be free; and for me now to have a part in forcing him into ways of dishonour seemed too bad. it didn’t seem altogether fair to me either. i had always tried to act honourably and mercifully, so that to have my own hand forced to acquiesce in the downfall of another man was in its way hard lines on me too. truly, the ways of wealth are full of thorns; and when war and politics and intrigue are joined in the[345] chase for gold, there is much suffering for all who are so unhappy as to be drawn within the spell. i was weakening in my resolve regarding the treasure, and would, i am sure, in a moment of impulse have made some rash proffer to the spaniard; when once more there came back to me the purpose of the treasure, and what marjory might think if i allowed it to go back where it might be used against her country. whatever i might do, there was no hope of compromise on the part of don bernardino. his one purpose, blind and set, was to fulfill the obligation set by his forefather and to restore the treasure to spain, by whom it might or might not be restored to the pope. the intensity of my thought had concentrated my interests to such an extent that i did not consciously notice what was going on around me. only in a sort of dim way did i know that the spaniard’s eyes were roving round the room; seeking, in the blind agony of the despair which was upon his soul for a clue or opening somewhere.
all at once i became broad awake to the situation of things which had happened in those few seconds. he was gazing with eyes of amazement on the heap of metal caskets, dimmed with three centuries of sea water, which were piled on the side table amongst the scattered heaps of odds and ends of various kinds, made manifest by some trick of light. then there came a light into his eyes as he raised his hand and pointed saying:
“so the treasure has been found!”
