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!"
CHAPTER XLII
A STRUGGLE
I think that at first sheer amazement had controlled the Spaniard'sthoughts. But whatever the cause of the control was, it soon passedaway; then the whole fiery nature of the man seemed to sweep from himlike a torrent:
"And so all the learned arguments with which you have overwhelmed me,were but a cloak to cover your possession of the treasure which it wasgiven to me and mine to guard. I might have guessed, that without thecertainty of possession you would not have been so obdurate to my offer,given in all sincerity as it was. From other things, too, I might haveknown! That woman, so old, who watches you with eyes that see more thanis to see, and who have reason of her own to mistrust you, she telledto me that nightly she has heard you dig in the rock as though you makegrave. Take care it is not so! I am guardian of that treasure; and I amdesperate! Already have I told you that all things are to me, all waysto fulfill the trust of my fathers. We are here alone! I am armed; andalready my life is forfeit to this course. Yield yourself, then, to me!"
Like a flash of light he had drawn a dagger from his breast; and with anupward sweep of his hand held it poised, either to strike or throw.But already I had taken warning from his eyes. Ever since danger hadthreatened Marjory, I had carried my revolver with me; even at night itrested under my pillow. The practice which Marjory and I had often had,till she had taught me the old trick which her father had taught her ofgetting "the drop" on an adversary, stood me now in good stead. Whilsthe had been drawing his dagger, I had already covered him; he finishedthe words of his command straight into the muzzle of my six-shooter.I said as quietly as I could, for it was with a mighty effort I keptapproximately calm under stress of such a sudden attack:
"Drop that dagger! Quick; or I shall shoot it from your hands!" Herecognised his helplessness in the matter. With a despairing sigh heopened his fingers; the dagger fell jingling to the floor. I went on:
"Now hold up your hands, well above your head! Move back to the wall!"He did so, and stood facing me with a disdainful smile. I stooped, andwith my right hand picked up the dagger, still keeping him covered withmy left. I put the weapon on the far side of the table, and approachedhim. He did not move, but I could see that he was sizing me up. Thisgave me no anxiety, for I knew my own strength; and I had also a shrewdidea that if he had any other arm about him he would not be calculatinghis chances for a physical struggle. Cautioning him that his lifedepended on his stillness, for I still held my revolver to his breast, Ipassed my hand lightly over him; he had manifestly no other weapon. Theonly sign of one was the sheath of his dagger; this I took from him.I placed the dagger in it and put it in my own pocket; then I drew achair to the middle of the room and motioned him to sit down. He obeyedsullenly. Having by this time regained something of my serenity of mind,I spoke:
"Your pardon, Sir, for the indignity to which I have been obliged tosubmit you; but I am sure you will remember that it was not I who beganthe question of force. When you thought it right to draw arms upon me inmy own house, you made it necessary that I should protect myself. Now,let me say something in answer to your charge against me. The finding ofthe treasure has nothing whatever to do with my theory of action;I should hold my present view just as strongly had we not made thediscovery. Indeed, I may say that since we have had actual possession ofthe treasure, it seems not nearly so desirable as it had been. So far asI am concerned, I don't care a straw whether I have ultimate possessionof it or not; but I am so fixed up that if I waive my rights--that is ifI have any to waive--that I may aid in doing a repugnant thing to a verydear friend. That I shall not do. I shall oppose its doing by any meansin my power!" The Spaniard saw a chance, and spoke: