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,............