“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: