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commission thereon superseded, even in his sober intervals, make contracts to bind himself or property. Wadsworth v. Sharpsteen, 8 N. Y. 388; Leonard v. Leonard, 14 Pick. 280.

But he may make a will. Lewis v. Jones, 50 Barb. 645; Stone v. Damon, 12 Mass. 488; Breed v. Pratt, 18 Pick. 115; Whitmarsh v. Stryker, 1 Green's Ch. (N. J.) 8. The opinion of Foster, J., in Lewis v. Jones, supra, contains a learned and valuable analysis and examination of the cases.

In Miller v. Finley, 12 Am. Rep. 306; S. C., 26 Mich. 249, the drunkenness of the maker of a note was held to be no defense to an action on the note in absence of proof of fraud or of his total incapacity. The same doctrine was held in Caulkins v. Fry, 35 Conn. 170.

In State Bank v. Mc Coy, 69 Penn. St. 204; S. C., 8 Am. Rep. 246, it was ruled that the drunkenness of the maker of a promissory note cannot be set up as a defense against an innocent holder for value, and in Matthews v. Baxter, L. R., 8 Exch. 132, it was decided by the Court of Exchequer that the contract of a man too drunk to know what he was about was voidable only and not void.

In Mattheissen v. McMahon, 38 N. J. L. 536, the Court of Errors and Appeals of New Jersey held, that the general rule is, that contracts with lunatics and insane persons are invalid, subject to the qualification that a contract made in good faith with a lunatic, for a full consideration, which has been executed without knowledge of the insanity, or such information as would lead a prudent person to the belief of the incapacity, will be sustained; that the after-occurring insanity of a principal operates, per se, as a revocation or suspension of the powers of his agent, except in cases where a consideration has been previously advanced in the transaction so that the power became coupled with an interest, or where a consideration of value is given by a third person dealing with the agent, relying on his apparent authority in ignorance of the principal's incapacity. That was an action to recover goods, and the defendant claimed title under a sale and delivery by plaintiff's intestate. Depue, J., noting the third exception, said: Exception was taken to the charge of the court as to the effect of the insanity of a contracting party on his contracts.

The goods, in fact, were delivered into the possession of the defendants by Shandley, the superintendent of McMahon's business. The effect of this delivery was met by the plaintiff by testimony that McMahon was incapable of transacting business during the time of the delivery, by reason of insanity. There was evidence that the deceased exhibited symptoms of a disordered intellect as early as the commencement of the delivery of the goods, which continued until his death.

The judge, having charged that there was no evidence of part payment to make the contract good

within the statute of frauds, and that its validity was dependent on a delivery and acceptance of the goods sold, or of some part thereof, submitted as the question for the jury whether McMahon was competent to make the bargain, and if so, whether his competency continued so as to enable him to complete and perfect the bargain by delivery. This presentation of the question, as well as the instruction that the burden of proving the mental incapacity of the deceased was on the plaintiff, and that the plaintiff must satisfy the minds of the jury by the proof he adduces of that fact, were correct.

The instruction was, that the contracts of lunatics and insane persons were invalid and not binding, with a qualification that if Mattheissen, acting as the agent of the company, was dealing with McMahon or his agent in the ordinary course of business, in good faith, without any knowledge of the insanity or mental disturbance of McMahon, and without the knowledge of such circumstances as would put a reasonably prudent man upon inquiry, made the bargain in good faith, then that would be a good bargain, and neither McMahon nor his representative could set up the insanity against it. Exception was taken to the refusal of the judge to add a direction that nothing but imposition on an insane person will avoid his contract.

The instruction as given is in accord with the principle established by the modern English cases and the decisions of our courts, as the general rule in dealing with the contracts of lunatics. Yauger v. Skinner, 1 McCarter, 389; Eaton v. Eaton, 8 Vroom, 108; Molton v. Camroux, 2 Exch. 487; S. C., 4 id. 17; Beavan v. McDonald, 9 id. 309; Elliott v. Ince, 7 De G., M. & G. 475.

There is a class of cases, such as Baxter v. Earl of Portsmouth, 2 C. & P. 178, in which imposition upon a lunatic. advantage taken of his mental infirmity is held to be an essential ingredient of the defense. But these are cases of contracts for necessaries contracts which lunatics, known to be such, are capable of entering into, and are exceptions to the general rule. Other contracts with lunatics not strictly for necessaries, which have been fully executed, and on which a consideration of benefit to the lunatic has been given, may be within the reason of this exception, where the transaction is shown to be perfectly fair and reasonable, at least so far as to allow the recovery back of the consideration given, or to prevent a rescission by the lunatic or his representatives, without restoring the consideration, whenever a restoration is practicable. The liability of the lunatic in such cases is upheld not on the ground of the contract, but on the fact that the lunatic has received and enjoyed an actual benefit from the contract. This view is advanced by Pollock, C. B., in Gore v. Gibson, 13 M. & W. 626, and by Redfield, C. J., in Lincoln v. Buckmaster, 32 Vt. 658. On this principle, Brown

v. Jodrell, 3 C. & P. 30; Dane v. Kirkwall, 8 id. 675; | knowledge. On demurrer to the rejoinder the

Niell v. Morley, 9 Vesey, 478; Selby v. Jackson, 6 Beavan, 192; and the observations of Shaw, C. J., in Arnold v. Richmond Iron Works, 1 Gray, 434, may be reconciled with the other cases.

The general rule is, that absence of knowledge of the insanity of the party, as well as fairness in other respects, must concur to give validity to a contract with a lunatic. Knowledge or information, such as would lead a prudent person to the belief of the incapacity, is such evidence of bad faith as will avoid the contract. Lincoln v. Buckmaster, 32 Vt. 652. In Yauger v. Skinner the rule is stated by Chancellor Green to be, "that if the proof be clear that an executory contract to purchase was made in good faith, and for a full, fair price, when the lunacy of the vendor was neither known nor suspected, and that the contract was executed on the part of the purchaser without knowledge or belief of the existence of the incapacity of the grantor, the contract will be upheld." In Elliott v. Ince Lord Cranworth states the result of the authorities to be, "that dealings of sale and purchase by a person apparently sane, though subsequently found to be insane, will not be set aside against those who have dealt with him on the faith of his being a person of competent understanding." In Price v. Berrington, 7 Hare, 402, ViceChancellor Shadwell says: "I do not understand it to be denied that if the party treating with the lunatic knew of the lunacy, that is a fraud." In Molton v. Camroux, as reported in 2 Exch. 501, Pollock, C. B., says: "The rule, as laid down by Littleton and Coke, has, no doubt, in modern times been relaxed, and unsoundness of mind would now be a good defense if it could be shown that the defendant was not of capacity to contract, and the plaintiff knew it." In Beavan v. McDonell, 9 Exch. 309, the action was by a lunatic to recover back a deposit made on a contract to purchase lands. To a plea alleging receipt of the money under the contract, the plaintiff replied that when the contract was made, and money paid, he was a lunatic, and incapable of contracting, and that the contract was not of any benefit to him, and averred that the defendant, at the time, etc., had notice. The defendant rejoined that neither the vendors nor the defendant, when the plaintiff made the contract, or paid the money, "knew that he was a lunatic, or of unsound mind, and incapable, by reason of unsoundness, of understanding the meaning of a contract, but made the said contract with him fairly and in good faith, believing that he was able to understand the same." In none of the pleadings was any allusion made to imposition or advantage taken of the lunatic in the bargain. The defense was made solely on the ground of unsoundness of mind and knowledge of that fact by the opposite party, and by the rejoinder an issue was tendered on the averment of

pleadings were held to be good. The case was afterward tried on that issue, and resulted in a verdict for the plaintiff, which was sustained, as appears by the report of the case in 10 Exch. 183.

In Gore v. Gibson, 13 M. & W. 623, to an action against an indorser of a bill of exchange the defendant pleaded that when he indorsed the bill he was so intoxicated, and thereby so entirely deprived of sense, understanding and the use of his reason as to be unable to comprehend the meaning, nature or effect of the indorsement, or to contract thereby, of which the plaintiff, at the time of the indorsement, had notice. On demurrer it was contended that the plea, to be good, should have averred that the intoxication was procured by the plaintiff, or that he took advantage of it. The court, nevertheless, held the plea to be good. In Matthews v. Baxter, L. R., 8 Exch. 132, the plea was in the same

form.

Notwithstanding the declaration of Chancellor Kent (2 Kent, 645), "that the better opinion would seem to be that the fact of the existence of the lunacy must have been previously established by inquisition, before it could control the opinion of the power," the weight of authority, as well as sound reasoning, led to the conclusion that the after-occurring insanity of the principal operates, per se, as a revocation or suspension of the agency, except in cases where a consideration has previously been advanced in the transaction which was the subjectmatter of the agency, so that the power became coupled with an interest; or where a consideration of value is given by a third person, trusting to an apparent authority in ignorance of the principal's incapacity. Story on Agency, § 481; Bunce v Gallagher, 5 Blatchf. C. C. 481; Davis v. Lane, 10 N. H. 156. Justice Story states the principle to be, that "as the party himself, during his insanity, could not personally do a valid act, his agent cannot, in virtue of a derivative authority, do an act for and in his name, which he could not lawfully do for himself." From this principle the conclusion inevitably results that transactions of third parties, which, under the circumstances, would be invalid if had directly with the principal, must be equally invalid though they be done with the agent. Saving the rights of persons who, before the insanity intervened, became interested in the power by reason of a consideration advanced, or who, in ignorance of the incapacity, in good faith parted with a consideration of value, relying on the apparent authority of the agent, complete justice will be done, and the law on this subject be made to harmonize.

In Murray v. Carlin, 67 Ill. 286, it was decided that the settlement of a cause of action made when one of the parties was so intoxicated as to be incapacitated would not be conclusive on the latter.

In Dexter v. Hall, 15 Wall. 9, it was held, after a

learned examination of the cases, that a power of attorney to sell lands made by a lunatic is void, not merely voidable. See, contra, Breckenridge v. Ormsby, 1 J. J. Marsh. (Ky.) 236; Hovey v. Hobson, 53 Me. 451; Cates v. Woodson, 2 Dana (Ky.), 452; Somers v. Pumphrey, 24 Ind. 231.

Where goods are sold to a person apparently of sound mind, who is not known by the seller to be otherwise, and who has not been found to be otherwise by a proper proceeding for that purpose, and the contract is fair and bona fide, and the purchaser receives and uses the goods, whereby the contract becomes so far executed that the parties cannot be placed in statu quo, such contract cannot afterward be set aside because of the unsoundness of mind of said purchaser at the time of the sale, nor can payment for the goods be refused, either by the alleged lunatic or his representatives. Wilder v. Weakley, 34 Ind. 181. So, where a person subject to temporary insanity sold, during a lucid interval, property for a full price for the payment of urgent debts and with the knowledge of his friends, he was held not to be entitled to have the sale set aside. Jones v. Perkins, 5 B. Monr. 222.

A judgment obtained against a person subsequently found to be of unsound mind may be revived against him and his committee. McNees v. Thompson, 5 Bush, 686; but see 47 Me. 548.

Proof of delusion in independent subjects is not enough. Sozear v. Shields, 23 N. J. Eq. 509; and see Hull v. Unger, 2 Abb. U. S. 507. Absolute soundness of mind is not necessary to enable one to make a valid conveyance. It is sufficient if the mind fully comprehend the import of the particular act. Horey v. Hobson, 55 Me. 256; Miller v. Craig, 36 Ill. 109; Speers v. Sewell, 4 Bush, 239; Dennett v. Dennett, 44 N. H. 531; Rippy v. Gaunt, 4 Ired. 443.

THE RELATIONS OF THE UNITED STATES TO
EACH OTHER, AS MODIFIED BY THE WAR
AND THE CONSTITUTIONAL AMENDMENTS.
(Concluded.)

V. THE CONSTITUTIONAL ERA SINCE 1861.
First. How are the relations of the States modified
by the war?

It is clear that the war could not amend the Constitution, which provides for an amendment by peaceable procedure.

War decided the issue between the Union and the seceding States. It decreed a restoration of the Union against the seceding States, and that they should be remitted to their obligations as well as to their privileges and rights under the Constitution. It decreed, to use a forensic phrase, the specific execution by the seceders, as defendants, of the stipulations of the constitutional compact, in favor of the Union States, as plaintiffs. But in decreeing obligations, it must have decreed the benefits. It decreed the com

fits.

Contracts with lunatics are not all absolutely pact as a whole, the bundle of burdens and of benevoid; but such as are fairly made with them for necessaries or things suitable to their condition and habits of life will be sustained. Richardson v. Strong, 13 Ired. 106; Ex parte Northington, 1 Ala. Sel. Cas. 400; Skidmore v. Romaine, 2 Bradf. 122; Pearl v. McDowell, 3 J. J. Marsh. (Ky.) 658; and where one enters into a contract with a lunatic without knowledge of his lunacy, or renders him important services, thereby greatly benefiting him, a court of equity will award him reasonable compensation. Ballard v. McKenna, 4 Rich. (S. C.) Eq. 358. But it is otherwise if the services prove of no benefit to the lunatic. Lincoln v. Buckmaster, 32 Vt. 652. A contract entered into during a lucid interval is valid. Lily v. Waggoner, 27 Ill. 395.

Tender of payment of the consideration is not necessary to rescind a sale made by a person who was non compos mentis at the time thereof. Henry v. Fine, 23 Ark. 417.

Where the contract of a lunatic or drunkard is in question and the fact of lunacy or drunkenness is established by other means than a legal inquisition, it is always competent for the party alleging the contract to prove a lucid interval. Tozer v. Saturlee, 3 Grant's (Penn.) Cas. 162.

Where a contract is impeached solely on the ground of incapacity of one of the parties to it and without charge of fraud, the test of capacity is the ability of such party to comprehend, in a reasonable manner, the nature of the particular transaction.

To that decree the seceding States bowed as final, as law, whether they concurred in its righteousness or not. They had submitted to the jurisdiction of the tribunal of war; they joined issue in its forum; the decision was adverse; and from it there was no appeal; and they have submitted to its irreversible result, bound by a solemn sense of duty, though with natural sorrow. And to-day, cheered by their traditional love of a Constitutional Union, and by the flowers of faith and hope in the future, growing where the weeds of their recent woe are dying, they heartily unite with their brethren, once enemies, now allies and friends, in advancing the prosperity, in defending the rights, and in promoting the common liberties, happiness and glory of the people of this great Confederate Republic of free and self-governing Commonwealths.

Second. What is the effect of the 13th, 14th and 15th amendments?

The mode of their adoption was such as had never been known, though in form it was regular; and with the protest welling up from the deepest fountains of constitutional liberty against that mode, and against it, as a precedent for the future; I hold, they are in form and fact a part of the Constitution of the United States, and submission to them, recognized (as they have been) by all departments of the Federal goverument, and by all the States, has become a duty and an obligation; and this is despite all that might be said against the general impolicy of the provisions of the amendments. With that I have nothing here and now to do. It is mine only to determine their effect in the single aspect to which this association has directed my investigation.

They were adopted by the States, under the forms agreed upon, in the original Constitution, by the unanimous consent of the States of the Union; by the original States before 1789, and by each successive State on its admission into the Union. They are the additional stipulations, incorporated into the original compact, and binding on all, because thus adopted by the immediate or mediate consent of all the States.

As to the 13th Amendment: It was adopted on the principle, that the existence of slavery in any State had been, was, and would be, an apple of discord between the members of the Union.

In the original Constitution each State had agreed to be, and continue a state, republican in form; because it was believed no Union could succeed, which was a republic, unless all its members were likewise republics (C. U. S., Art. 4, § 4, Federalist No. 9 and 43). This amendment agrees, (as might have been done in the original Constitution) that an institution of labor, existing in some of the States, should be abolished, and that slavery should cease everywhere "in the United States or any place subject to their jurisdiction," just as it was agreed originally, the slave trade might be forbidden after 1808 (C. U. S., Art. 1, § 9. c. 1).

Mark the words -"in the United States," that is,in any one of the States of the Union, and then it adds, or any place subject to their jurisdiction." This includes the district, forts, territories, etc., subject not to a single State's jurisdiction, but to their, the many States, the United States jurisdiction. So that this amendment distinctly recognizes the jurisdiction of the separate State and that of the United States, as a multiple of the separate States; and so far from contravening the nature of the old Constitution, as it has been contended for, sustains and supports the views already taken.

The 14th and 15th amendments may be considered together.

By the abolition of slavery, slaves became freemen. The Dred Scott case (19 How. 393) decided, that no negro was a citizen within the meaning of the judiciary clause of the constitution The enslaved race, freed by the consent of the States, and no longer capable of being enslaved, it was determined, should be advanced to citizenship.

The 14th amendment declares-"All persons born or naturalized in the United States, and subject to the jurisdiction thereof," (that is-in any of the United States, or in any territory, or fort, or the district of Columbia) are citizens of the United States, and of the State wherein they reside."

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In the original Constitution (Art. 4, § 2, c. 1) it was provided that "the citizen of each State shall be entitled to all the privileges and immunities of citizens in the several States."

By this original article an intercommunication of the privileges and immunities of citizenship was agreed to between the several States, and still subsists. By this amendment the States agreed, who should be regarded as citizens of each State, to whom these rights inured, secured by the original article.

But it did more. Having defined that all the citizens of each State should be known as citizens of the United States, it proceeded to declare that "no State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States."

Upon this one remark is obvious: that it implies

that, but for this last provision, a State might abridge the privileges of a citizen of the United States; and hence by agreement the State power was inhibited.

Clearly it was competent for the States to agree not to do so, without prejudice to themselves in other respects. The Federal Government could not prevent such State action, unless the States consented. They did consent, and by self-constraint, mutually stipulated, abridged their own powers.

But what is meant by a citizen of the United States? Who is born in the United States? No one, but one who is born in one of them. A citizen of every one of the United States is a person born in any one of them, and a citizen of a State is any person born or naturalized in any one of them, and resident in such State. Birth or naturalization make citizenship in every State; they, with residence, make it in a particular State.

But what rights, etc., belong to the citizen of the United States? The rights of a citizen of a State? By no means. He has rights as citizen of a State which as citizen of the United States he does not have. And this is obvious from the terms of the clause. Can the citizen of the United States vote, or hold office, or carry on business in every State, though not a citizen thereof? The negative to this question has been authoritatively settled by the Slaughter House cases (16 Wall. 74), and others in the Supreme Court.

But before citing the conclusions from these cases we may unite the 15th amendment, in the present consideration, which declares "that the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of color, race or previous condition of servitude." In Minor v. Happersett, 21 Wall. 162, the Supreme Court unanimously decided that suffrage was exclusively under State jurisdiction; except as to race, color and previous condition of servitude; and that the constitution in no part of it gave the citizen of the United States any such privilege anywhere, and the United States could confer none such.

But in this case the court say substantially that, as to citizenship of the United States, the 14th amendment did nothing more than introduce into that class those excluded by the effect of the Dred Scott decision.

The court held the same opinion as to the State authority in respect to those who should practice law in its courts (Bradwell v. State, 16 Wall. 130), and the same principle as to other employments, in the Slaughter House cases. Id. 36.

In this last case the court define the rights of a citizen of the United States in these general terms, as "those which owe their existence to the Federal Government, its national character, its constitution or its laws." In other words, whatever right a citizen has by virtue of the Federal Union, Constitution or government, he holds as citizen of the United States; all others as a citizen of a State.

This really makes the word "citizen" mean what, philologically, it would mean. It has the same root as quies, or rest and safety. Thus, it signifies the status of one in rest and safety under the governmental power. And, as the citizen has two governments, the Federal and State, he is a citizen of the United States quoad the Federal power, and of the State quoad the State power; and this view accords with the language of Ch. J. WAITE, in the U. S. v. Cruikshank, 2 Otto, 549, 550-51.

In the case just cited, and in the U. S. v. Reese, 2

Otto, these former decisions have been affirmed and enforced.

I quote from the opinion of Chief-Justice Waite in the last case: "We have in our political system a Government of the United States, and a Government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own, who owe it allegiance," etc. Speaking of the Government of the United States, he says, "it is to some extent a government of the States in their political capacity. It is also for certain purposes a government of the people. Its powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme and above the States - but beyond, it has no existence." Speaking of Federal and State Governments, he says: "Together they make one whole, and furnish the people of the United States with a complete Government, ample for the protection of all their rights at home and abroad." * * "The Government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people," etc.

It is obvious from these decisions that the amendment under consideration has worked no radical change in the character of the relations of the States to the Union.

But the language of the court in the Slaughter house cases is explicit. In 1872, after all the amendments had been adopted, Mr. Justice Miller said (delivering the court's opinion), and after referring to the public sentiments which induced their adoption: "But however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed, that the existence of the States, with powers for domestic and local government, including the regulation of civil rights- the rights of person and property, was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States and to confer additional power on that of the Nation."

The same course of reasoning would apply to all the detailed provisions of the 14th amendment. In the rapid and constant intercourse between the States, and their busy commerce, it was intended by the States to give mutual assurance that life, liberty and property of all persons should be under the protection of equal laws. But such a provision cannot be supposed to affect radically the Federal system itself, any more than those in the original Constitution, which forbade the States to pass laws impairing the obligation of compacts and the like.

And this is made apparent from the language of the second clause of the 14th amendment, which, with more precision than in the 1st Art., § 1, c. 3 of the original Constitution, emphasizes the fact that the House of Representatives is a representative of each State, by the election of its people.

"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State,"

etc.

The latter part of the clause is immaterial to this discussion, though I may say that it is the offer of a premium of increased power for debased suffrage, and imposes a penalty of loss of power for intelligent suffrage. But this has availed in the universal suffrage of the South to increase its power in the House of Representatives by thirty members, with a like increase of influence in the electoral colleges.

And the provision is very significant in this, that as the representation is based on suffrage, and not on population; and as suffrage is of State regulation, the House of Representatives becomes more especially a representation of States than by the original Constitution. It does no longer represent the people, but the voters, who are the creatures of State law! The people of a State might be regarded as a part of the whole people of the United States; but surely, the voters of each, qualified by the States respectively, are no part of each other.

One more provision remains to be noticed. The third and fourth clauses are a condemnation of the seceding States; and their action is denounced as rebellion. This is a sanction by the concurrent consent of the States, to the theory, that henceforth secession at will, by any State, is and shall be deemed to be rebellion, and that secession except by mutual consent, is unconstitutional.

This recognizes the theory, that the compact between the States is permanent and none can be absolved from it but by consent of the States or revolution.

This interpretation by the judicial construction of the States as the supreme appellate power in the Union, acting as the amendatory and interpreting authority (as in the 11th amendment), in their separate legislatures, must be taken to settle the conflict of opinion, which honestly existed among men prior to 1861, that the States are not bound by a compact revocable or dissoluble at the will of one or more States, but by a compact irrevocable and indissoluble, except by the consent of all, unless through the supreme right of revolution, and which Mr. Hamilton says is above all forms of government. Accord Chase, C. J., in Texas v. White, 7 Wall. 700.

Baron Montesquieu (Spirit of Laws, vol. 2, B. 9, ch. 1) quoted by Mr. Hamilton in the 9th number of the Federalist, has shown how a republic, so difficult to maintain over a large and populous country, is possible, when it is a confederacy between small republics. The confederation gives strength against external violence; the severalty of the members gives internal happiness to each. And he insists, that by confederation alone can republican institutions be extended over a large territory. In truth, if the States were consolidated, we might have an Empire, but no Republic. If the States are confederated, an empire in extent is possible, and with republican institutions. The conservatism of the federative principle must prevail, or our republican system will yield to imperial dominion.

This was the scheme proposed by our fathers: union for strength against external foes and for peace between the members; separation, for order, local freedom and home government. Decentralization is the genius of the American system of government. Cooley on Const. Lim. 189.

Such was our system as first established; and though changes have occurred, amendments beeu made, increasing the tendency to practical centralism, and

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