Part 39

To this the Austrians answered, "that the character of the queen and duke was too well known not to destroy the force of such an accusation; that the tale of the confession was an imposture, and that no such attempt was ever made."

Each party was now inflamed, and orders were given to the Austrian general to hazard a battle. The two armies met at Molwitz, and parted without a complete victory on either side. The Austrians quitted the field in good order; and the king of Prussia rode away upon the first disorder of his troops, without waiting for the last event. This attention to his personal safety has not yet been forgotten.

After this, there was no action of much importance. But the king of Prussia, irritated by opposition, transferred his interest in the election to the duke of Bavaria; and the queen of Hungary, now attacked by France, Spain, and Bavaria, was obliged to make peace with him at the expense of half Silesia, without procuring those advantages which were once offered her.

To enlarge dominions has been the boast of many princes; to diffuse happiness and security through wide regions has been granted to few. The king of Prussia has aspired to both these honours, and endeavoured to join the praise of legislator to that of conqueror.

To settle property, to suppress false claims, and to regulate the administration of civil and criminal justice are attempts so difficult and so useful, that I shall willingly suspend or contract the history of battles and sieges, to give a larger account of this pacifick enterprise.

That the king of Prussia has considered the nature and the reasons of laws, with more attention than is common to princes, appears from his dissertation on the Reasons for enacting and repealing Laws: a piece which yet deserves notice, rather as a proof of good inclination than of great ability; for there is nothing to be found in it more than the most obvious books may supply, or the weakest intellect discover. Some of his observations are just and useful; but upon such a subject who can think without often thinking right? It is, however, not to be omitted, that he appears always propense towards the side of mercy. "If a poor man," says he, "steals in his want a watch, or a few pieces, from one to whom the loss is inconsiderable, is this a reason for condemning him to death?"

He regrets that the laws against duels have been ineffectual; and is of opinion, that they can never attain their end, unless the princes of Europe shall agree not to afford an asylum to duellists, and to punish all who shall insult their equals, either by word, deed, or writing. He seems to suspect this scheme of being chimerical. "Yet why," says he, "should not personal quarrels be submitted to judges, as well as questions of possession? and why should not a congress be appointed for the general good of mankind, as well as for so many purposes of less importance?"

He declares himself with great ardour against the use of torture, and by some misinformation charges the English that they still retain it.

It is, perhaps, impossible to review the laws of any country without discovering many defects and many superfluities. Laws often continue, when their reasons have ceased. Laws made for the first state of the society continue unabolished, when the general form of life is changed. Parts of the judicial procedure, which were, at first, only accidental, become, in time, essential; and formalities are accumulated on each other, till the art of litigation requires more study than the discovery of right.

The king of Prussia, examining the institutions of his own country, thought them such as could only be amended by a general abrogation, and the establishment of a new body of law, to which he gave the name of the Code Frédérique, which is comprised in one volume of no great bulk, and must, therefore, unavoidably contain general positions to be accommodated to particular cases by the wisdom and integrity of the courts. To embarrass justice by multiplicity of laws, or to hazard it by confidence in judges, seem to be the opposite rocks on which all civil institutions have been wrecked, and between which legislative wisdom has never yet found an open passage.

Of this new system of laws, contracted as it is, a full account cannot be expected in these memoirs; but, that curiosity may not be dismissed without some gratification, it has been thought proper to epitomise the king's plan for the reformation of his courts.

"The differences which arise between members of the same society, may be terminated by a voluntary agreement between the parties, by arbitration, or by a judicial process.

"The two first methods produce, more frequently, a temporary suspension of disputes than a final termination. Courts of justice are, therefore, necessary, with a settled method of procedure, of which the most simple is to cite the parties, to hear their pleas, and dismiss them with immediate decision.

"This, however, is, in many cases, impracticable, and in others is so seldom practised, that it is frequent rather to incur loss than to seek for legal reparation, by entering a labyrinth of which there is no end.

"This tediousness of suits keeps the parties in disquiet and perturbation, rouses and perpetuates animosities, exhausts the litigants by expense, retards the progress of their fortune, and discourages strangers from settling.

"These inconveniencies, with which the best-regulated polities of Europe are embarrassed, must be removed, not by the total prohibition of suits, which is impossible, but by contraction of processes; by opening an easy way for the appearance of truth, and removing all obstructions by which it is concealed.

"The ordonnance of 1667, by which Lewis the fourteenth established an uniformity of procedure through all his courts, has been considered as one of the greatest benefits of his reign.

"The king of Prussia, observing that each of his provinces had a different method of judicial procedure, proposed to reduce them all to one form; which being tried with success in Pomerania, a province remarkable for contention, he afterwards extended to all his dominions, ordering the judges to inform him of any difficulties which arose from it.

"Some settled method is necessary in judicial procedures. Small and simple causes might be decided upon the oral pleas of the two parties appearing before the judge; but many cases are so entangled and perplexed as to require all the skill and abilities of those who devote their lives to the study of the law.

"Advocates, or men who can understand and explain the question to be discussed, are, therefore, necessary. But these men, instead of endeavouring to promote justice and discover truth, have exerted their wits in the defence of bad causes, by forgeries of facts, and fallacies of argument.

"To remedy this evil, the king has ordered an inquiry into the qualifications of the advocate. All those who practise without a regular admission, or who can be convicted of disingenuous practice, are discarded. And the judges are commanded to examine which of the causes now depending have been protracted by the crimes and ignorance of the advocates, and to dismiss those who shall appear culpable.

"When advocates are too numerous to live by honest practice, they busy themselves in exciting disputes, and disturbing the community: the number of these to be employed in each court is, therefore, fixed.

"The reward of the advocates is fixed with due regard to the nature of the cause, and the labour required; but not a penny is received by them till the suit is ended, that it may be their interest, as well as that of the clients, to shorten the process.

"No advocate is admitted in petty courts, small towns, or villages; where the poverty of the people, and, for the most part, the low value of the matter contested, make despatch absolutely necessary. In those places the parties shall appear in person, and the judge make a summary decision.

"There must, likewise, be allowed a subordination of tribunals, and a power of appeal. No judge is so skilful and attentive as not sometimes to err. Few are so honest as not sometimes to be partial. Petty judges would become insupportably tyrannical if they were not restrained by the fear of a superiour judicature; and their decisions would be negligent or arbitrary if they were not in danger of seeing them examined and cancelled.

"The right of appeal must be restrained, that causes may not be transferred without end from court to court; and a peremptory decision must, at last, be made.

"When an appeal is made to a higher court, the appellant is allowed only four weeks to frame his bill, the judge of the lower court being to transmit to the higher all the evidences and informations. If, upon the first view of the cause thus opened, it shall appear that the appeal was made without just cause, the first sentence shall be confirmed without citation of the defendant. If any new evidence shall appear, or any doubts arise, both the parties shall be heard.

"In the discussion of causes altercation must be allowed; yet to altercation some limits must be put. There are, therefore, allowed a bill, an answer, a reply, and a rejoinder, to be delivered in writing.

"No cause is allowed to be heard in more than three different courts. To further the first decision, every advocate is enjoined, under severe penalties, not to begin a suit till he has collected all the necessary evidence. If the first court has decided in an unsatisfactory manner, an appeal may be made to the second, and from the second to the third. The process in each appeal is limited to six months. The third court may, indeed, pass an erroneous judgment; and then the injury is without redress. But this objection is without end, and, therefore, without force. No method can be found of preserving humanity from errour; but of contest there must sometime be an end; and he, who thinks himself injured for want of an appeal to a fourth court, must consider himself as suffering for the publick.

"There is a special advocate appointed for the poor.

"The attorneys, who had formerly the care of collecting evidence, and of adjusting all the preliminaries of a suit, are now totally dismissed; the whole affair is put into the hands of the advocates, and the office of an attorney is annulled for ever.

"If any man is hindered by some lawful impediment from attending his suit, time will be granted him upon the representation of his case."

Such is the order according to which civil justice is administered through the extensive dominions of the king of Prussia; which, if it exhibits nothing very subtle or profound, affords one proof more that the right is easily discovered, and that men do not so often want ability to find, as willingness to practise it.

We now return to the war.

The time at which the queen of Hungary was willing to purchase peace by the resignation of Silesia, though it came at last, was not come yet. She had all the spirit, though not all the power of her ancestors, and could not bear the thought of losing any part of her patrimonial dominions to the enemies which the opinion of her weakness raised every where against her.

In the beginning of the year 1742, the elector of Bavaria was invested with the imperial dignity, supported by the arms of France, master of the kingdom of Bohemia; and confederated with the elector Palatine, and the elector of Saxony, who claimed Moravia; and with the king of Prussia, who was in possession of Silesia.

Such was the state of the queen of Hungary, pressed on every side, and on every side preparing for resistance: she yet refused all offers of accommodation, for every prince set peace at a price which she was not yet so far humbled as to pay.

The king of Prussia was among the most zealous and forward in the confederacy against her. He promised to secure Bohemia to the emperour, and Moravia to the elector of Saxony; and, finding no enemy in the field able to resist him, he returned to Berlin, and left Schwerin, his general, to prosecute the conquest.

The Prussians, in the midst of winter, took Olmutz, the capital of Moravia, and laid the whole country under contribution. The cold then hindered them from action, and they only blocked up the fortresses of Brinn, and Spielberg.

In the spring, the king of Prussia came again into the field, and undertook the siege of Brinn; but, upon the approach of prince Charles of Lorrain, retired from before it, and quitted Moravia, leaving only a garrison in the capital.

The condition of the queen of Hungary was now changed. She was, a few months before, without money, without troops, encircled with enemies. The Bavarians had entered Austria, Vienna was threatened with a siege, and the queen left it to the fate of war, and retired into Hungary, where she was received with zeal and affection, not unmingled, however, with that neglect which must always be borne by greatness in distress. She bore the disrespect of her subjects with the same firmness as the outrages of her enemies; and, at last, persuaded the English not to despair of her preservation, by not despairing herself.

Voltaire, in his late history, has asserted, that a large sum was raised for her succour, by voluntary subscriptions of the English ladies. It is the great failing of a strong imagination to catch greedily at wonders. He was misinformed, and was, perhaps, unwilling to learn, by a second inquiry, a truth less splendid and amusing. A contribution was, by news-writers, upon their own authority, fruitlessly, and, I think, illegally proposed. It ended in nothing. The parliament voted a supply, and five hundred thousand pounds were remitted to her.

It has been always the weakness of the Austrian family to spend in the magnificence of empire, those revenues which should be kept for its defence. The court is splendid, but the treasury is empty; and, at the beginning of every war, advantages are gained against them, before their armies can be assembled and equipped.

The English money was to the Austrians, as a shower to a field, where all the vegetative powers are kept unactive by a long continuance of drought. The armies, which had hitherto been hid in mountains and forests, started out of their retreats; and, wherever the queen's standard was erected, nations scarcely known by their names, swarmed immediately about it. An army, especially a defensive army, multiplies itself. The contagion of enterprise spreads from one heart to another. Zeal for a native, or detestation of a foreign sovereign, hope of sudden greatness or riches, friendship or emulation between particular men, or, what are perhaps more general and powerful, desire of novelty and impatience of inactivity, fill a camp with adventurers, add rank to rank, and squadron to squadron.

The queen had still enemies on every part, but she now, on every part, had armies ready to oppose them. Austria was immediately recovered; the plains of Bohemia were filled with her troops, though the fortresses were garrisoned by the French. The Bavarians were recalled to the defence of their own country, now wasted by the incursions of troops that were called barbarians, greedy enough of plunder, and daring, perhaps, beyond the rules of war, but otherwise not more cruel than those whom they attacked. Prince Lobkowitz, with one army, observed the motions of Broglio, the French general, in Bohemia; and prince Charles with another, put a stop to the advances of the king of Prussia.

It was now the turn of the Prussians to retire. They abandoned Olmutz, and left behind them part of their cannon and their magazines. And the king, finding that Broglio could not long oppose prince Lobkowitz, hastened into Bohemia to his assistance; and having received a reinforcement of twenty-three thousand men, and taken the castle of Glatz, which, being built upon a rock scarcely accessible, would have defied all his power, had the garrison been furnished with provisions, he purposed to join his allies, and prosecute his conquests.

Prince Charles, seeing Moravia thus evacuated by the Prussians, determined to garrison the towns which he had just recovered, and pursue the enemy, who, by the assistance of the French, would have been too powerful for prince Lobkowitz.

Success had now given confidence to the Austrians, and had proportionably abated the spirit of their enemies. The Saxons, who had cooperated with the king of Prussia in the conquest of Moravia, of which they expected the perpetual possession, seeing all hopes of sudden acquisition defeated, and the province left again to its former masters, grew weary of following a prince, whom they considered as no longer acting the part of their confederate; and when they approached the confines of Bohemia took a different road, and left the Prussians to their own fortune.

The king continued his march, and Charles his pursuit. At Czaslau the two armies came in sight of one another, and the Austrians resolved on a decisive day. On the 6th of May, about seven in the morning, the Austrians began the attack: their impetuosity was matched by the firmness of the Prussians. The animosity of the two armies was much inflamed: the Austrians were fighting for their country, and the Prussians were in a place, where defeat must inevitably end in death or captivity. The fury of the battle continued four hours: the Prussian horse were, at length, broken, and the Austrians forced their way to the camp, where the wild troops, who had fought with so much vigour and constancy, at the sight of plunder forgot their obedience, nor had any man the least thought but how to load himself with the richest spoils.

While the right wing of the Austrians was thus employed, the main body was left naked: the Prussians recovered from their confusion, and regained the day. Charles was, at last, forced to retire, and carried with him the standards of his enemies, the proofs of a victory, which, though so nearly gained, he had not been able to keep.

The victory, however, was dearly bought; the Prussian army was much weakened, and the cavalry almost totally destroyed. Peace is easily made when it is necessary to both parties; and the king of Prussia had now reason to believe that the Austrians were not his only enemies. When he found Charles advancing, he sent to Broglio for assistance, and was answered, that "he must have orders from Versailles." Such a desertion of his most powerful ally disconcerted him, but the battle was unavoidable.

When the Prussians were returned to the camp, the king, hearing that an Austrian officer was brought in mortally wounded, had the condescension to visit him. The officer, struck with this act of humanity, said, after a short conversation: "I should die, sir, contentedly after this honour, if I might first show my gratitude to your majesty by informing you with what allies you are now united, allies that have no intention but to deceive you." The king appearing to suspect this intelligence; "Sir," said the Austrian, "if you will permit me to send a messenger to Vienna, I believe the queen will not refuse to transmit an intercepted letter now in her hands, which will put my report beyond all doubt."

The messenger was sent, and the letter transmitted, which contained the order sent to Broglio, who was, first, forbidden to mix his troops on any occasion with the Prussians. Secondly, he was ordered to act always at a distance from the king. Thirdly, to keep always a body of twenty thousand men to observe the Prussian army. Fourthly, to observe very closely the motions of the king, for important reasons. Fifthly, to hazard nothing; but to pretend want of reinforcements, or the absence of Bellisle.

The king now, with great reason, considered himself as disengaged from the confederacy, being deserted by the Saxons, and betrayed by the French; he, therefore, accepted the mediation of king George, and, in three weeks after the battle of Czaslaw, made peace with the queen of Hungary, who granted to him the whole province of Silesia, a country of such extent and opulence, that he is said to receive from it one third part of his revenues. By one of the articles of this treaty it is stipulated, "that neither should assist the enemies of the other."

The queen of Hungary, thus disentangled on one side, and set free from the most formidable of her enemies, soon persuaded the Saxons to peace; took possession of Bavaria; drove the emperour, after all his imaginary conquests, to the shelter of a neutral town, where he was treated as a fugitive; and besieged the French in Prague, in the city which they had taken from her.

Having thus obtained Silesia, the king of Prussia returned to his own capital, where he reformed his laws, forbade the torture of criminals, concluded a defensive alliance with England, and applied himself to the augmentation of his army.

This treaty of peace with the queen of Hungary was one of the first proofs given by the king of Prussia, of the secrecy of his counsels. Bellisle, the French general, was with him in the camp, as a friend and coadjutor in appearance, but in truth a spy, and a writer of intelligence. Men who have great confidence in their own penetration are often by that confidence deceived; they imagine that they can pierce through all the involutions of intrigue, without the diligence necessary to weaker minds, and, therefore, sit idle and secure; they believe that none can hope to deceive them, and, therefore, that none will try. Bellisle, with all his reputation of sagacity, though he was in the Prussian camp, gave, every day, fresh assurances of the king's adherence to his allies; while Broglio, who commanded the army at a distance, discovered sufficient reason to suspect his desertion. Broglio was slighted, and Bellisle believed, till, on the 11th of June, the treaty was signed, and the king declared his resolution to keep a neutrality.

This is one of the great performances of polity which mankind seem agreed to celebrate and admire; yet, to all this nothing was necessary but the determination of a very few men to be silent.

From this time the queen of Hungary proceeded with an uninterrupted torrent of success. The French, driven from station to station, and deprived of fortress after fortress, were, at last, enclosed with their two generals, Bellisle and Broglio, in the walls of Prague, which they had stored with all provisions necessary to a town besieged, and where they defended themselves three months before any prospect appeared of relief.

The Austrians, having been engaged chiefly in the field, and in sudden and tumultuary excursions, rather than a regular war, had no great degree of skill in attacking or defending towns. They, likewise, would naturally consider all the mischiefs done to the city, as falling, ultimately, upon themselves; and, therefore, were willing to gain it by time rather than by force.

It was apparent that, how long soever Prague might be defended, it must be yielded at last, and, therefore, all arts were tried to obtain an honourable capitulation. The messengers from the city were sent back, sometimes unheard, but always with this answer: "That no terms would be allowed, but that they should yield themselves prisoners of war."