TREASURE TROVE
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 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, 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; 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 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:
"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 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 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 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 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 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!"