CHAPTER XLI
TREASURE TROVE
There was no doubt that the Spaniard's devotion to his cause placed mein a considerable difficulty. I could not disguise from myself that heput forward a very strong claim for the consideration of one gentlemanby another. It was only on hurriedly thinking the matter over that theweakness of his cause was apparent. Had the whole affair been a privateor personal one; had the treasure belonged to his ancestors, I shouldhave found it in my own heart a very difficult matter to gainsay him,and be subsequently at ease with myself. I remembered, however, thatthe matter was a public one. The treasure was collected by enemies ofEngland for the purpose of destroying England's liberty, and so theliberty of the whole human race for which it made. It was sent in chargeof a personal enemy of the country in a ship of war, one of many builtfor the purpose of invading and conquering England. In time of nationalstress, when the guns were actually thundering along our coast from theThames to the Tyne, the treasure had been hidden so as to preserve itfor future use in its destined way. Though centuries had passed, it wasstill held in mind; and the very men who had guarded it were, whilstprofessing to be Britons, secret enemies of the country, and devoted toher ultimate undoing. Beyond this again, there was another reason fornot giving it up which appealed to me more strongly than the claim ofmy own natural duty, because it came to me through Marjory. Though Spainwas at peace with my country, it was at war with hers; the treasurecollected 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 lackof all things, ships, men, stores, cannon, ammunition, that the evilof want came across the seas to the statesmen of the Quirinal withheart-breaking persistence. America, unprepared for war at first, wasday by day becoming better equipped. The panic had abated which had setin on the seaboard towns from Maine to California, when each founditself at the mercy of a Spanish fleet sweeping the seas, no man knewwhere. Now if ever, money would be of value to impoverished Spain. Thisgreat treasure, piled up by the Latin for the conquering of theAnglo-Saxon, and rescued from its burial of three centuries, would comein the nick of time to fulfill its racial mission; though that missionmight be against a new branch of the ancient foe of Spain, whose rootsonly had been laid when the great Armada swept out in all its pride andglory on its conquering essay. I needed no angel to tell me what wouldbe Marjory's answer, were such a proposition made to her. I could seein my mind's eye the uprearing of her tall figure in all its pride andbeauty, the flashing of her eyes with that light of patriotic fire whichI knew so well, the set of her mouth, the widening of her nostril, thewrinkling 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 meto decide. Not for us both! This is an affair of two nations, or ratherof three: The Papacy, the Spaniard, the Briton. Nay, it touches anotheralso, for the lady who shares the secret with me represents the countrywith which your nation is at war!" The Spaniard was manifestly baffled;the red, hellish light shone in his eyes again. His anger foundexpression in a sneer:
"Ah! so I suppose you do not propose to deal with the treasure, whenfound, as a private matter; but shall hand it over to your governmentto deal with!" The best answer to his scorn was complacency; so I saidquietly:
"There again we are in a difficulty. You see, my dear fellow, no oneexactly 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 beenlooking it up since I undertook this quest; and I am rather surprisedthat in all the years that have elapsed since our practical law-makingbegan, nothing has been done to put such matters on an exact basis. Thelaw, such as it is, seems to rest on Royal Prerogative; but what thebase of that prerogative is, no one seems exactly to know. And besides,in the various constitutional changes, and the customs of differentdynasties, there are, or certainly there may be, barriers to theassertion of any Crown right--certainly to the fulfillment of such!" Heseemed staggered. He had manifestly never regarded the matter as otherthan the recovery of property entrusted to him through his ancestors. Itook advantage of his mental disturbance; and as I myself wanted time tothink, so that I might fix on some course of action which would suitMarjory's wishes as well as my own, I began to tell him the impressionleft on my mind by such study of the subject of Treasure Trove as I hadbeen able to achieve. I quoted now and again from notes made in mypocket book.
"The Scotch law is much the same as the English; and as we are inScotland, we are of course governed by the former. The great point ofdifference, seen with the eyes of a finder, is that in Scotland thefraudulent concealment of Treasure Trove is not a criminal offence, asit is in England. Thus, from my point of view, I have nothing to fearas to results; for though by the General Police Act the finder is boundto report the find to the Chief Constable, the statute only applies tothings found on roads or in public places. So far as this treasure isconcerned, it may turn out that it can, in a sense, be no treasure troveat all."--
"According to Blackstone, treasure trove is where any money or coin,gold, silver, plate or bullion is found hidden _in_ the earth or otherprivate place, the owner thereof being unknown. If found _upon_ theearth, 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 givesthe Crown the property."--
"Coin or bullion found at the bottom of a lake or in the bed of a riveris not treasure trove. It is not hidden in the earth."--
"The right of the Crown is ... limited to gold or silver, bullion orcoin. 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 berecognised even in your law."
"Ah, but there comes in again a fresh difficulty; or rather a freshseries of difficulties, beginning with what is, in the eye of thelaw, the 'owner.' Let us for a moment take your case. You claim thistreasure--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 theArmada, to be used for the conversion or subduing of England. We willtake the purpose later, but in the meantime we are agreed that theoriginal owner was Pope Sixtus V. Now, the Popedom is an office, and onthe death of one incumbent his successor takes over all his rights andpowers and privileges whatever they may be. Thus, the Pope of to-daystands in exactly the same position as did Pope Sixtus V, when he sentthrough King Philip, and in trust of Bernardino de Escoban the aforesaidtreasure." I felt that the words 'aforesaid treasure' sounded verylegal; 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 sameposition of original trustee as was your great ancestor of which thisrecord takes cognisance." This too was convincingly legal in sound. "Ido not think that British law would recognise your position, or thatof your predecessors in the trust, in the same way as it would thecontinuation of the ownership, if any, on the part of the succession ofthe Popes. However, for the sake of the argument, let us take it theywould be of equal force. If this be so, the claim of ownership andguardianship would be complete." As I paused, the Spaniard who had beenlistening to me with pent up breath, breathed more freely. With agraceful movement, which was almost a bow, he said:
"If so that you recognise the continued ownership, and if you speakas the exponent of the British law, wherein then is the difficulty ofownership at all; should it be that the treasure may be found?" Here wasthe real difficulty of both my own argument and Don Bernardino's. Formy own part, I had not the faintest idea of what the law might be; butI could see easily enough that great issues might be raised for theBritish side against the Spanish. As I had to 'bluff' my opponent to acertain extent, I added the impressions of personal conviction to mymanner as I answered:
"Have you considered what you, or rather your pr
edecessors in title andtrust, have done to forfeit any rights which you may have had?" He paledand was visibly staggered; it was evident that this view of the questionhad not entered his mind. The mere suggestion of the matter now openedup for him grave possibilities. His lips grew dry, and it was with avoice hoarser than hitherto that, after a pause, he said:
"Go on!"
"This treasure was sent, in time of war, by the enemies of England, forthe purpose of her undoing--that is her undoing from the point of viewof the established government of the time. It was in itself an actof war. The very documents that could, or can, prove the originalownership, would serve to prove the hostile intent of such owners insending it. Remember, that it came in a warship, one of the great Armadabuilt and brought together to attack this country. The owner of thetreasure, the Pope, gave it in trust for the _cestui que trust_, theKing of Spain to your ancestor Bernardino de Escoban, as hereditarytrustee. Your ancestor himself had the battleship _San Cristobal_ builtat his own cost for the King's service in the war against England. Yousee, they were all--the individual as well as the nation--hostile toEngland; and the intention of evil towards that country, what Britishlaw calls 'malice prepense' or the '_mens rea_' was manifest in all!"The Spaniard watched me intently; I could see by the darkening of hisswarthy face and the agonised contraction of his brows that the argumentwas 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 youraction, or what is the same, that of your predecessor in the trust, inhiding the treasure in the domains of Britain. As a foreigner you wouldnot have, I take it, a right in any case. And certainly, as a foreignerin arms against this country, you would have--could have--no right ineither domestic or international law. The right was forfeit on landingfrom your warship in time of war on British shores!"
There was a long pause. Now that I came to piece out into an argumentthe scattered fragments of such legal matters as I had been able tolearn, and my own ideas on the subject, the resulting argument wasstronger than I had at first imagined. A whole host of collateralmatters also cropped up. As I was expounding the law, as I saw it, thesubject took me away with it:
"This question would then naturally arise: if the forfeiture of therights of the original owner would confer a right upon the Crown ofBritain, standing as it does in such a matter as the 'remainder man.'Also whether the forfeited treasure having been hidden, being what thelaw calls '_bona vacantia_,' can be acquired by the finder, subject tothe law relating to the Royal prerogative. In both the above cases therewould arise points of law. In either, for instance, the nature of thetreasure might limit the Crown claim as over against an individualclaiming rights as finder."
"How so?" asked Don Bernardino. He was recovering his _sang froid_, andmanifestly was wishful to reassert himself.
"According to the statement of Don Bernardino, which would assuredly beadduced in evidence on either side, the treasure was, or is, of variousclasses; coined money, bullion, gems and jewel work. By one of theextracts which I have read you, the Crown prerogative only applies toprecious metals or bullion. Gems or jewellery are therefore necessarilyexcluded; for it could not, I think, be claimed that such baubles werecontraband of war."
"Again, the place of hiding may make a bar to Crown claim as treasuretrove. According to the cipher narrative the place of hiding was a seacave. This could not be either 'on' the ground, which would give titleto the finder; or 'in' the ground which would give Crown claim. Butbeyond this again, there might arise the question as to whether thetreasure should in any way come into the purview of the law at all. Youwill remember, in one of my excerpts Blackstone excepts the sea from theconditions of treasure trove. It might have to be fought out in the LawCourts, right up to the House of Lords which is our final Court ofAppeal, whether the definition of 'sea' would include a cave into whichthe tide ran." Here I stopped; my argument was exhausted of presentpossibilities. The Spaniard's thought now found a voice:
"But still ownership might be proved. Our nations have been at peaceever since that unhappy time of the Invincible Armada. Nay more, havenot the nations fought side by side in the Peninsula! Besides, at notime has there been war between England and the Pope, even when hispriests were proscribed and hunted, and imprisoned when captured.The friendship of these countries would surely give a base for thefavourable consideration of an international claim. Even if there mayhave been a constructive forfeiture, such was never actually exacted;England might, in her wisdom, yield the point to a friendly nation, whenthree hundred years had elapsed." Here another idea struck me.
"Of course" I said "such might be so. England is rich and need notenforce her right to a treasure, however acquired. But let me remind youthat lawyers are very tenacious of points of law, and this would haveto be decided by lawyers who are the servants of the state and theadvisers of the governments. Such would, no doubt, be guided by existingprinciples of law, even if the specific case were not on all fours withprecedents. I learn that in India, which is governed by laws made byBritons and consonant with the scheme of British law, there is actuallyan act in existence which governs Treasure Trove. By this, themagisterial decision can be held over to allow the making of a claim ofprevious ownership within a hundred years. So you see that by analogyyour claim of three hundred years of peace would put you clean out ofcourt." 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. Asthere 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 haveto be, I know not. I would have given my fortune and my life to haveacquitted me honourably of the trust imposed on me. But such happinessmay not alas! be mine. Senor" this he said very sternly "I trust thatyou will always remember that I tried all ways that I know of, of peaceand honour, to fulfill my duty. Should I have to take means otherto discharge my duty, even to the point of life and death, you willunderstand 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 thatof another?" he said simply, then he went on:
"But oh! Senor, it is not the taking of life, my own or another's, whichI dread. It is that I may have to walk in devious ways, where honour isnot; have I not already tasted of its bitterness! Understand me thatthis duty of guardianship of the trust is not of my choosing. It was setto me and mine by other and greater powers than ourselves, by theVicegerent of God Himself; and what is ordained by him I shall do in allways that are demanded of me."
I was sorry for him, very sorry; but his words made a new fear. HithertoI had been dealing with a gentleman, and there is much protection inthis thought to any opponent. Now, however, he calmly announced that hewould act without scruple. I was in future to dread, not fair fightingalone, 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 darkeneddangerously; but all its haughty pride was obliterated by a look ofdespair and grief as he said sadly:
"Alas I know not. I am in the hands of God! He may deal mercifully withme, and allow me to pass to my grave not dishonoured; but for myself mypath 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 manfair; or indeed fighting him anyway, so long as we understood the matterfrom the first. But this was against the grain. The man had shownhimself willing to give up everything he had, so as to fulfill his trustand be free; and for me now to have a part in forcing him into ways ofdishonour seemed too bad. It didn't seem altogether fair to me either. Ihad always tried to act honourably and mercifully, so that to have myown hand forced to acquiesce in the downfall of another man was in itsway hard lines on me too. Truly, the ways of wealth are full of thorns;and when war and politics and intrigu
e are joined in the chase forgold, there is much suffering for all who are so unhappy as to be drawnwithin 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 profferto the Spaniard; when once more there came back to me the purpose of thetreasure, and what Marjory might think if I allowed it to go back whereit might be used against her country. Whatever I might do, there was nohope of compromise on the part of Don Bernardino. His one purpose, blindand set, was to fulfill the obligation set by his forefather and torestore the treasure to Spain, by whom it might or might not be restoredto the Pope. The intensity of my thought had concentrated my intereststo such an extent that I did not consciously notice what was going onaround me. Only in a sort of dim way did I know that the Spaniard's eyeswere roving round the room; seeking, in the blind agony of the despairwhich was upon his soul for a clue or opening somewhere.
All at once I became broad awake to the situation of things which hadhappened in those few seconds. He was gazing with eyes of amazement onthe heap of metal caskets, dimmed with three centuries of sea water,which were piled on the side table amongst the scattered heaps of oddsand ends of various kinds, made manifest by some trick of light. Thenthere came a light into his eyes as he raised his hand and pointedsaying:
"So the treasure has been found!"