"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:
Public-domain text, read in full here on John Shaqi.
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