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New York with 4,300,000; or one man in Colorado weighs as much in choosing a President as one hundred and seven men in New York; and so, if there is no election of a Vice-President, the Senate elects and the inequality is the same.

In both cases nine millions (in twenty States) may elect a President over twenty-nine millions (in nineteen States); or if the twenty States are nearly divided in sentiment, and the nineteen States are unanimous, four and a half millions of voters may elect a President and Vice-President over thirty-three and a half millions!

All this results from the fact, that States are the factors in electing the executive.

But as each State appoints, as its legislature directs, and the counting of the electoral votes, certified by State authority, only is left to the two Houses of Congress, it has come to be decided in our day, that a fraudulent or illegal return by State officials may palm upon the whole country, by their act an executive, whom the country has not elected; and it is held that the whole Union has no organic power to defeat the fraud of the officials of the State of Colorado! and that thirty-eight millions cannot gainsay the fraudulent act of officers appointed by 40,000. Whether this be a right or wrong decision it shows the potentiality of a single State in making an executive for thirty-eight States of 40,000 men to control 40,000,000! or of one to defeat the will of 1,000.

That these results are not fanciful, the patent fact faces us to-day, that the present executive of the Union was elected by States, though he fell short by a quarter of a million of having a majority of the popular vote. However pleasant to some or unpleasant to others it may be, this is the consequence of having the election of an executive by States, rather than by popular vote. And in the choosing of electors, each State may consolidate its whole force as a State by a general election, and a majority of one vote for electors in New York, will give her solid State strength to her favorite.

3. Judiciary. How is it constituted? Judges and all other officers are nominated by the President, and appointed by and with the advice and consent of the Senate.

Nomination comes from the President, whose election depends on the senatorial factor in the electoral college, which represents State equality, as well as on the representative factor, which may not represent the popular strength of the State; or in one event, may depend on the equal vote of the States in the House of Representatives.

Confirmation of the nomination is made by the States with equal voice in the Senate.

A like course of reasoning, as before adopted, will show that in many cases, a small popular minority in a majority of the States may appoint every judge and every officer of the United States against the will of an overwhelming popular majority; and this is due to the fact, that States are the factors in all official appointments.

Let me now call attention to some of the great functions of government.

Take the war power. No war can be declared but by the vote of Congress. If the House of Representatives agrees, it will result that the popular will in a large degree concurs. But if the Senate dissents, a necessary war may be prevented by nine millions of people against twenty-nine millions.

Take the militia. It may be organized, armed and disciplined under laws of Congress, but cannot be officered or trained but at the will of the States. Nonaction by States would disband the militia. Const. U. S., art. 1, § 8, cl. 15.

Take the treaty power. The President by and with the advice and consent of the Senate (two-thirds concurring), may make treaties. Two-thirds of the States (fourteen millions) may make a treaty, proposed by the President elected by a majority of States (nine millions) against the will of one-third of States (twenty-four millions); and one State more than one-third of the States (3,600,000) may defeat a necessary treaty advised by one State less than two-thirds of the States (thirty-five millions).

The amendment power. A recent very able writer (Mr. George Tichnor Curtis) has said that "the process of amending the Constitution seems scarcely reconcilable with the hypothesis that the Constitution is a compact between independent sovereign States."

Let me examine this question. On the threshhold two things are obvious.

First. That the insertion of the clause in the Constitution, whereby amendments may be made without the unanimous consent of the States, implies, that without that clause, the framers of the Constitution knew no amendment could be made without such unanimity, and that a stipulation by unanimous consent was needed to dispense with unanimity in the case of future amendmedts. This is a strong argument in support of the continuing entity and sovereign control over any changes in the Constitution by each and all the States.

Second. The powers of the co-pactors to agree to the making amendments without the consent of all, was a sovereign power, which each could exercise without prejudice to itself in any other respect.

But it will be seen that the guards against detriment to the rights of each were made very stringent, and were put into the hands of the States; while the lack of unanimity provided for was necessary to prevent factious obstruction by one State to needful changes in a permanent system of union between so many States.

The proposal of amendments could be defeated by one State more than one-third of the States in the Senate, or by one more than one-third of the legislatures of the several States. Const. U. S., art. 5.

When proposed, the ratification of the amendment could be defeated by one more than one-fourth of the States.

To state it numerically, ten States containing two millions of people could defeat an amendment ratified by twenty-eight States containing thirty-six millions of people; or three-fourths (eighteen millions) of States could ratify, though one-fourth (twenty millions) of States rejected; but in this last case, for the protection of these populous States, two-thirds of the House of Representatives must have proposed it, where their voices would be prevalent over the smaller States.

These guards were considered ample, because requiring an extraordinary combination of populous and small States to fasten any amendment on the Constitution.

But there were certain fundamental questions, which were specially guarded, that no amendment as to the slave trade or taxation should be made prior to 1808 at all; and that the equal suffrage of States in the Senate

should never be taken from a State, without its consent.

This last provision, fixing irrevocably, unless with the consent of each State, its equi-pollency in the Senate, is clear evidence that no change in this respect can be made but by a new compact, to which each State, as a pactor, must be a party. It proves the continuing and perpetual independence of the State, continued for its own protection against the vox majoritatis, whether of population or of States. This provision proves more. If the State was not to be preserved as an equal in sovereignty despite a difference in population; if its distinctive type of polity was not thus to be secured, there is no assignable reason for thus shielding its equality in the Senate against all action, but at its own will and by its own consent.

This equality because of sovereignty is the only permanent and unchangeable principle in the whole Constitution. States can never be destroyed but by their own separate will.

Taking the whole clause it shows that amendment must always be on State ratification, either by its separate legislature, or its convention (that representative of the civil body politic, which had originally ratified the Constitution).

Thus Colorado, with its 40,000 people, is secured from being robbed of its equality of power in the Senate of the Republic by the voice of thirty-seven States and thirty-eight millions of people.

States are, therefore, the factors in amending the compact.

From this review is it not obvious that without the continuing existence of States and State governments, de jure and de facto, the Federal government would perish?

Suppose the legislatures refuse to elect Senators, where would be laws, treaties, officers? Suppose the States should not provide for electors, where would be the executive? Suppose only one-half should refuse, the government would fall. If the States in their full autonomy, as such are pulled down, the Federal Samson would be destroyed amid their ruins.

But another view may be presented, which touches delicate ground-the States were designed to be guardians of the liberties of the people against the usurpations of the Federal Government.

I quote from the language of one of the early writers upon our federal system.

He argues, that if the representatives of the people in the general government betray their constituents, no resource would be left but in the existence of the original right of self-defense paramount to all forms of government — that this could be exerted botter against the federal rulers, than those of a State. "In a single State, if the persons intrusted with the supreme power become usurpers" * *the people in their counties and cities, "having no distinct governments in each can take no regular measures for defense. The citizens rush tumultuously to arms without concert, without system, without resource," etc. But in a Confederacy, the people, without exaggeration, may be said to be entirely masters of their own fate. Power being almost always the rival of power, the general government will, at all times, stand ready to check the usurpations of the State governments; and these will have the same disposition toward the general government. * *If their rights are invaded by either, they (the people) can make use of the other, as the instrument of redress." * * "It may safely

be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. ** The legislatures will have better means of information" (than the people), "they can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States; and unite their common forces, for the protection of their common liberty. * * If the federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces." And then after stating, that there would not be for a long time a large federal army, he adds: "When will the time arrive, that the Federal Government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immence empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning."

This powerful passage, written before the Constitution was ratified, and as an argument to a great State to do so; calling the government of the Union a Federal Government, and the Union proposed a Confederacy and with cogent persuasiveness showing how, under the proposed Constitution, the States, as independent nations, with all the organs of civil power and all the resources of the community at hand, could and should fight federal usurpers of popular liberties, is from the 28th number of the Federalist, and from the splendid pen of Alexander Hamilton to the people of New York.

The same views are pressed by Mr. Madison in the 46th number of the Federalist. "But ambitious encroachments of the Federal Government on the authority of the State governments would not excite the opposition of a single State or of a few States only; they would be signals of general alarm. Every government would espouse the common cause. Plans of resistance would be concerted. The same combination, in short, would result from an apprehension of the federal as was produced by the dread of a foreign yoke," etc., etc.

In opposition to these views, some stress has been laid upon the use of the word "national," in the early sketch of a Constitution proposed by Mr. Randolph of Virginia, in the Federal Convention (2 Mad. Papers, 731). As we are engaged in finding the substance of things, we need not be much troubled by vain disputings about words - but it is well to notice that the pregnant word was never used, and cannot be found in the Constitution. Nation as a substantive, and national as an adjective, are aliens to constitutional language. It is true in the early stage of the Constitution, strong measures were proposed, of which this epitome will suffice.

It was proposed to give Congress the power of negative on State laws (Jour. Con. 132-6); to call forth the force of the Union against States (id. 68); to give the appointment of Governors of States to the General Government, allowing them a negative; denying land or naval forces to a State; giving absolute control of

the militia to the United States with the appointment of all its officers; and giving the United States power to pass all laws whatever (Mad. Pap. 890, 1, 2). But these failed. Their being proposed and rejected, argues against the theory of consolidation.

Indeed, Gouverneur Morris, the leader of centralism in the convention, said he feared "the States had many representatives on that floor, but America few; " that "he was in favor of another general convention, that will have the firmness to provide a vigorous government, which we are afraid to do."

He proposed such a convention, but did not even have a second to his proposition. And so in his letter to Lewis Sturges in 1814, he says: "The Constitution was a compact, not between solitary individuals, but between political societies; the people, not of America, but of the United States, each enjoying sovereign power, and of course equal rights."

But another class of constitutional provisions establish the continued subsistence of the States as parties to the compact.

shall no longer exist - but it is a mandate by the States to the judiciary, not to construe the Constitution as they had done; by the delegators, still existent as parties to the compact, which by amendment they construed. The States did not amend or change the Constitution, but gave it a mandatory interpretation.

And so the court immediately held in Hollingsworth v. Virginia, 3 Dale, 378, and obeyed the voice of the States, and decided that the 11th amendment swept away every suit previously commenced; and that the self-responsibility of a State was the only tribunal to which appeal by a citizen could be made to enforce its obligation.

It is singular that such a judicial construction should ever have prevailed; for Mr. Hamilton, in the 81st number of the Federalist, in a very strong passage, shows, that the State as a sovereigu cannot be sued by a citizen on its obligation; that the judgment could only be enforced by war; and that it was absurd to suppose the Federal courts could ever claim a power involving such consequences.

Do not these provisions show the still existent authority of the States in the Federal Union?

A few words will be proper as to the relations of the States inter se:

1. All the provisions under which the States are sev

Treason against a State is a recognized crime (Const. U. S., art. 4, § 2, cl. 2). No place for a seat of government or for forts, etc., can be under exclusive Federal power without State assent, Art. 1, § 8, cl. 17; thus recognizing the eminent domain of the States, as not divestible but by their will. (See, also, Martin v. Wad-erally to give their voices in the conduct of the Gendell, 16 Peters; Pollard v. Hogan, 3 How.). And even the limitation on State power in art. 1, § 4, show, that express prohibition was needed to divest them of it. And although no State can augment its power by selfdivision, without the assent of Congress, no State can ever be divided but by its own consent. Its territorial integrity is secured against all power of the Federal government.

But the 10th Amendment is conclusive. It was adopted several years after the Constitution, to define with precision, the limits between delegated and reserved authority. Each State had already to its own government delegated a part of its powers. The new Constitution would disturb this State arrangement, and take powers from its government, and give them to that of the United States. Hence its language, "All powers not delegated to the United States by the Constitution nor prohibited to the States, are reserved to the States respectively or to the people." The sovereign grantors delegate certain powers to the United States, but those not so delegated, they reserve to the State government, or to the people of the State, as the civil body politic, unless prohibited to either by the Constitution. Reservation is the language used by a grantor, and is like the word "retain " in the articles of confederation. It does not say were, but " are reserved "— that is—now, while the amendment speaks, years after the Constitution was adopted, the civil body politic, the State, still remains as the reservoir of powers undelegated to the Federal or the State Governments. For authority to do an act, the Federal Government must find a thou mayest" in the Constitution. The authority of a State is in itself, unless forbidden, by a "thou shalt not." The limit of the former is delegation; of the latter, prohibition.

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And again when by judicial construction in Chisholm v. Georgie, 2 Dall. 419, it was held, that a citizen could sue a State under the 3d article of the Constitution, the States adopted the 11th amendment, which in mandatory terms declared: "The judicial power shall not be construed" to exteud to such a case.

eral Government, may be regarded as mutual stipulations of a compact, that the States will thus co-operate to give vitality to the Federal functions.

2. All provisions, by which each State is inhibited from the exercise of powers, are stipulations of compact.

3. Inter-communication of privileges of citizenship, reciprocal faith in records, etc., extradition of criminals, slaves, etc., are the terms of a compact.

4. The provision by which the United States guarantee a republican form of government to each State, is a stipulation inter se, that each shall retain that form, and that all shall assure it to each (Art. 4, § 4). To further illustrate this subject of Federal relations of the States, I cite the language of Rufus Choate in an address July 4, 1858: "I have sometimes thought that the States in our system may be compared to the primordial particles of matter, indivisible, indestructible, impenetrable, whose natural condition is to repel each other, or at best, to exist in their own independent identity, while the Union is an artificial aggregation of such particles." In other words, the States are natural and original; the Union artificial and derivative.

This serves to illustrate and explain the German distinction between Staatenbund (or bond of States) and Bundes-Staat (a bonded State).

But a further and striking illustration may be derived from physical science.

By chemical affinity a new substance is created by the union of several distinct substances.

By mechanical union of diverse substances a mixture may be made, but the substances, though combined in one mass, are unchanged, and no new substance is formed. They are mixed, not merged. Thus oxygen and hydrogen may be mechanically mixed forever, and the substance of neither be changed- but the electric spark will destroy each, and create the dew-drop diverse from either, by the union of both.

The latter illustrates the Bundes-Staat. England Mark-it does not say, the power to sue a State and Scotland became the new kingdom of Great

Britain, by the statute of Anne. The separate kingdoms were lost in their distinct organisms by merger into the new kingdom with its new organism; and so as to Ireland under the act of George III.

Our own Union of States, whose separate organs are retained and must exist in order to the Federal Union itself, is in fact and in theory an association of States or a confederacy (Hamilton's language, Federalist, No. 28). The States are mechanically bound together as the "primordial particles," of which the Union is the "artificial aggregation," in the language of Mr. Choate. And " the Federal and State Goveruments," says Madison, in the 46th number of the Federalist, are in fact but different agents and trustees of the people, instituted with different powers and for different purposes."

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This idea is poetically expressed by Virgil, in lines describing a Roman Salad, from which, perhaps, our motto is taken:

It manus in gyrum, paullatim singula vires Deperdunt proprias: Color est e pluribus unusNec totus viridis, quia lactea frusta repugnant Nec de lacte nitens, quia tot variatur ab herbis. The thirty-eight stars on our flag make one constellation.

Every star is distinct, and one star differeth from another star in glory. But they are united in one galaxy by mutual affinities; a galaxy moving and known by one name in the firmament of Christendom, but each with its original name, its several life, its separate motion, its special type of civilization, and its own noble God-given mission.

The name by which we are known among nations, and given in the Constitution, is suggestive, not of political unity as one people, but of a political Union of States United States-that is, States, once separate, now, united.

This is the only constitutional name for the Union or its Government. Power is "delegated to the United States" (10th Am.). Legislative power is vested in a "Congress of the United States;" the executive power in a "President of the United States of America;" "the judiciary power of the United States," in courts.

Treason may be committed against a State or "the United States."

The territory "belongs to the United States," and was so ceded for the benefit of the several States, by Virginia and others.

"The United States" guarantee to each State a republican form of government, and against invasion. The United States are still bound under the Constitution for debts contracted under the confederation. No other name is found in the Constitution. But what name is this? It is that imported from the old articles of confederation, where it was defined to mean a confederacy between the several States as members of it. In answer, then, to the questions propounded, I say: The States are not organically one people, but are functionally one, as to all the powers delegated to the United States, and as to all stipulations of the Constitution, inter se. The Union is Staatenbund, not Bundes-Staat. Each State is a Republic, of which the units are men.

The United States is a Confederated Republic of States, of which the units are not men, but States. The States still exist, and by their union, they are organically one, as a Confederated Republic of States, but not as a new compositive State, or as one civil body politic.

* *

"The Constitution in all its provisions looks to an indestructible union composed of indestructible States," 6. * except through revolution or through consent of the States." Per Chase, C. J., in Texas v. White, 7 Wall. 700.

If through such consent or by revolution the Union should ever be dissolved, the "primordial particles," the separate stars, the indestructible States, would remain, but the government of the Union and the Union would perish. The being of the States is independent of federation, but the Federal Union depends upon the being of the States. In the language of Montesquieu, quoted by Hamilton in the 9th number of Federalist, "The Confederacy may be dissolved and the confederates preserve their sovereignty." "Without them the general government itself would disappear from the family of nations." Per the Supreme Court in Collector v. Day, 11 Wall. 125.

In closing the discussion of this era, which ends in 1861, we stand upon the threshold of the civil war.

I shall not speak of its causes, but of the several theories upon which the various parties to it acted. Three of these may be considered as embracing all:

1. That the Union was a nation, of which the States were parts, as counties are parts of a State; that the States were not parties to the Constitution as a compact; and that supremacy on the part of the government, and subordination on the part of the States, expressed the relation of the parties to the controversy.

2. A second theory admitted the Constitution was a compact, but was indissoluble, because the Union was intended to be a more perfect Union than the Confederation, which was called a "perpetual Union," and that the States, which claimed to secede, could not, because the other States dissented, and appealed to arms to enforce the compact upon the seceding States.

The third theory held with the second, that the Constitution was a compact, and that secession was a right reserved, in some cases (viz.: Va., N. Y. and R. I.) expressly, in others implicitly, when the compact had been violated, or for other just cause; and that in the case of no common arbiter, “each party has an equal right to judge for itself as well of infractions as of the mode and measure of redress."

The seceding States stood upon the third theory. The Union States held the first theory, and very many the second, which was, perhaps, most clearly promulgated by General Jackson in his famous proclamation of 1832.

Both parties appealed to war, the final court of appeal between States. Blows are the arguments used before that tribunal.

"Both stricken strike, and beaten both do beat." It ended in the re-establishment of the Union. And this brings me to the last era.

(To be concluded.)

COURT OF APPEALS ABSTRACT.
APPEAL.

Service of notice of entry of judgment to limit appeal.-A notice of the entry of judgment was served, not upon the person who had appeared as attorney for the defendant, but upon the firm of B. & T., who gave admission of service in the name of the attorney. This firm had nearly the exclusive management of the case for the defendant, and there was other evidence

that they were authorized to receive the notice and give the admission. Held, that the notice was properly served so as to limit the right of appeal to the General Term. Order below affirmed. Chase v. Bibbens. Opinion by Earl, J. [Decided Oct. 9, 1877.1

CARRIER OF PASSENGERS.

Liable for unnecessary violence toward passengers by servant: unauthorized violence while acting in scope of employment.-A railroad company set apart a car for ladies in one of its trains, and placards announcing that it was so reserved were placed on the car and a man was stationed at the car door with directions to endeavor to prevent men not accompanied by ladies from entering it, but he was not authorized to use physical force to prevent such entrance. He did use force to prevent a passenger entering the car and injured the passenger. Held, that the company had a right to set apart the car for the use of ladies and exclude males by force, using no more force than necessary. Held, also, that they would be liable for injury from an excess of force used in carrying out the regulation, and the fact that the servant employed to carry out the rule was not authorized to use force would not excuse the company so long as he did-not use such force for his own purposes and was acting within the scope of his employment. Held, further, that it was within the scope of his employment to use force to prevent males from entering the car. Judgment below affirmed. Peck v. N. Y. C. & H. R. R. R. Co. Opinion by Folger, J.

[Decided Oct. 2, 1877. Reported below, 8 Hun, 286.]

COMMON CARRIER.

1. Carrier may limit liability by contract.-A carrier of goods may limit his common-law liability by special contract fairly made, and when his liability is so limited to the sum of $50, by a requirement in the contract calling for the disclosure of the value of goods offered for carriage, in case they shall be of greater value than $50, this limitation is not avoided by the fact that at the time the goods were shipped the shipper was merely silent and made no attempt to mislead and was not asked the value of such goods. Judgment below affirmed. (S. C., 53 N. Y. 652; 56 id. 168; 62 id. 35.) Judgment below affirmed. Magnin v. Dinsmore. Opinion by Allen, J.

2. Non-delivery does not constitute conversion.-A mere non-delivery will not constitute a conversion, nor will a refusal to deliver on demand if the goods have been lost through negligence or have been stolen. Ib. [Decided Sept. 18, 1877.]

JUDGMENT.

1. Recitals in record not conclusive as to jurisdiction. - In an action to foreclose a mortgage one of the defenses was that the action had been barred by the foreclosure of a prior mortgage on the same premises. The record of the judgment of the foreclosure of the prior mortgage showed that plaintiff in this action appeared as defendant in that, and a notice of appearance and consent for judgment purporting to be signed by an attorney was filed with the judgment-roll. There was, however, no proof filed of service in that action on plaintiff in this. In answer to this defense plaintiff produced evidence to show that the notice of appearance and consent was forged; that the attorney named therein was not authorized to appear and that he did not appear in such action. Held, reversing judgment

below, that plaintiff was not concluded in this action by the record in the former action as to jurisdiction but might show the facts sought to be proved in answer to the defense set up. (Brown v. Nichols, 41 N. Y. 26, distinguished.) Ferguson v. Crawford. Opiuion by Rapallo, J.

2. When statements as to jurisdiction in record may be impeached. In this State parties to a judgment are not in a collateral action concluded by the record as to jurisdiction, but the want of jurisdiction may always be shown by evidence except when the question of jurisdiction was litigated and decided in the action wherein the judgment was rendered. And this applies as well to domestic judgments as to those of other States. And the want of jurisdiction will render null and void the judgment of any court whether it be of superior or inferior, of general, limited or local jurisdiction,or of record or not; and the recital of jurisdictional facts in the record of judgment is only prima facie evidence of their existence; and the party against whom the judgment is offered is not estopped from showing by affirmative proof that such facts were untrue and the judgment void. Ib. [Decided Sept. 18, 1877. Reported below, 7 Hun, 25.]

SURETYSHIP.

1. Right of joint surety against co-surety. - One of two co-sureties has a right only in case he pays the whole debt secured to recover one-half from his cosurety. In case he pays less than the whole he can recover no more than the amount which he has paid in excess of the moiety of the whole debt. Judgment below affirmed. Morgan v. Smith. Opinion by Folger, J.

2. Release of co-surety by creditor.- Where a cosurety has by the conduct of the creditor been released from his liability the remaining co-surety will be held exonerated only as to so much of the original debt as the discharged co-surety could have been compelled to pay had his obligation continued. Ib.

3. Effect of dealings by creditor with co-surety.-It has been held in England that an act of the creditor though by parol, which discharges one of two or more joint-debtors, will discharge both or all though the contract be in writing; but the rule is different in this country; here a release by parol to one joint-debtor will not operate as a discharge to the other. The distinction prevailing in England between matter in discharge arising after the making of the contract and that which shows that it was never valid, does not exist here. Ib.

4. Surety on lease: assignment of lease with landlord's consent. It was provided in a lease that the lessees should not assign it nor let or under-let the premises without the written consent of the landlord. Held that the consent of the landlord to the assignment of the lease or to subletting the premises would not operate to release the sureties for the rent, especially where the agreement of consent contained a clause saving all the rights of the sureties. Ib.

5. When surety not released by agreement between creditor and principal. The surety is discharged by a contract made between the creditor and the principal only when the rights of the surety are varied by such contract. When the rights and the remedies of the surety against his principal are saved he is not discharged though the creditor may not be able to proceed against the principal. Ib.

[Decided Sept. 25, 1877. Reported below, 7 Hun, 245.]

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