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Opinion of

writers in favour of the

der many restrictions.

stitution: immediately so, to the unhappy enemy vanquished in a just war; and thence person who suffers under it; finally so, to the infer the right of enslaving him. In this opimaster who triumphs in it, and to the state nion, founded, as I presume, on the idea of pu. which allows it.

nishing the enemy for his injustice, they are However, I must confess, that followed by Albericus Gentilis (g), Grotius (h), some modern notwithstanding the force of the Puffendorf (i), Bynkershoek (j), and many

reasons against the allowance of others. But in The Spirit of Laws' (k) the utility por ula

: domestic slavery, there are civilians right of killing is denied, except in case of ab

of great credit, who insist upon solute necessity and for self-preservation.

its utility ; founding themselves However, where a country is conquered, the chiefly, on the supposed increase of robbers author seems to admit the conqueror's right of and beggars in consequence of its disuse. This enslaving for a short time, that is, till the conopinion is favoured by Puffendorf (d) and quest is effectually secured. Dr. Rutherforth, Ulricus Huberus (e). In the dissertation on (l) not satisfied with the right of killing a panslavery prefixed to Potgiesserus on the German quished enemy, infers the right of enslaving law de statu servorum,' the opinion is exa- him, from the conqueror's right to a reparation mined minutely and defended. To this opi- in damages for the expences of the war. I do nion I oppose those ill consequences, wbich 1 not know, that this doctrine has been exahave already represented as almost neces- mined; but I must observe, that it seems only sarily flowing from the permission of domestic to warrant a temporary slavery, till reparation slavery ; the numerous testimonies against it, is obtained from the property or personal lawhich are to be fouod in ancient and modern bour of the people conquered. The lawfulness bistory; and the example of those European of slavery by contract is assented to by Grotius nations, which have suppressed the use of it, and Puffendorf (m), who found themselves on after the experience of many centuries and in the maintenance of the slave, which is the con. the more improved state of society. In jus- sideration moving from the master. But a tice also to the writers just mentioned I must very great writer of our own country, who is add, 'that though they contend for the advan- now living, controverts (n) the sufficiency of tages of domestic slavery, they do not seem to approve of it, in the form and extent in which (g) De Jur. Gent. cap. de servitute. it has generally been received, but under limi- (1) De Jur. Bell, 1. 3, c. 7, s. 5. tations, which would certainly render it far (i) Law of Nature and Nations, b. 6, c. 3, more tolerable, Huberus in bis Eunomia s. 6. Romana (f) has a remarkable passage, in

(i) Qiæst

. Jur. Publ. 1. 1, t. 3. which, after recommending a mild slavery, he (k) B. 15, c. 2. cautiously distinguishes it from that cruel spe- (l) See his Inst. Nat. Law, vol. 2, p. 573, cies, the subject of commerce between Africa and vol. 1, p. 481. and America. His words are, • loquor de ser- (m) See Grot. Jur. Bell, 1. 2, c. 5, s. 1, 2, vitute, qualis apud civiliores populos in usu avd Paff. Law of Nature and Nations, b. 6, fuit; nec enim exempla barbarorum, vel quæ c. 3, s. 4. nunc ab Africa in Americani fignt hominum (n) See Blackst. Comment. 1st ed. vol. 1, commercia, velim mihi quisquam objiciat.'

The great origin of slavery is very, and its captivity in war, though sometimes having been cited both for and against the fulness consi. it has commenced by contract. It rights of persons claiming to be the owners of

bas been a question much agitated, slaves in Great Britain, I have thought it worth whether either of these foundations of slavery while to insert together all that I find relating is consistent with natural justice. It would be to the subject in his Commentaries: engaging in too large a field of enquiry, to at. “ The spirit of liberty is so deeply implanted tempt reasoning on the general lawfuloess of in our constitution, and rooted even in our very slavery. I trust ton, that the liberty, for which soil, that a slave or a negro, the monent he lands I am contending, doth not require such a dis. in England, falls under the protection of the quisition; and am impatient to reach that part laws, and so far becomes a freeman; though of my argument, in wbich I hope to prove the master's right to his service may possibly slavery reprobated by the law of England as still continue. Vol. 1, p. 127. an inconvenient thing. Here therefore I shall “ I have formerly observed that pure and only refer to some of the most eminent writers, proper slavery does not, nay cannot, subsist in who have examined, how far slavery founded England; such I mean, whereby an absolute on captivity or contract is conformable to the and unlimited power is given to the master over law of nature, and shall just bint at the reasons, the life and fortune of the slave. And indeed which influence their several opinions. The it is repngoant to reason, and the principles of antient writers suppose the right of killing an natural law, that such a state should subsist

any where. The three origins of the riglit of (d) Law of Nature and Nations, b. 6, c. 3, slavery, assigned by Justinian, are all of ihem 1. 10.

built upon false foundations. As, first, slavery (e) Prælect. Jur. Eis. p. 16.

is held to arise jure gentium,' from a state of (0) See page 48.

captivity in war; whence slaves are called

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such a consideration. Mr. Locke has framed by contract (); and the substance of it is,
another kind of argument against slavery that a right of preserving life is unalienable ;

that freedom from arbitrary power is essential
mancipia, quasi mapu capti.' The conqueror, to the exercise of that right; and therefore,
say the civilians, had a right to the life of his that no man can by compact enslave himself.
captive; and, baving spared that, has a right Dr. Rutberforth (p) endeavours to answer Mr.
to deal with him as he pleases. But it is an Locke's objection, by insisting on various limi
ootrue position, when taken generally, that, tations to the despotism of the master; parti-
by the law of nature or nations, a man may calarly, that he has no right to dispose of the
kill his enemy: be bas only a right to kill him, slave's life at pleasure. But the misfortune of
in particular cases; in cases of absolute ne- this reasoning is, tbát though the contract can-
cessity, for self-defence; and it is plain this not justly convey an arbitrary power over the
absolute necessity did not subsist, since the slave's life, yet ii generally leaves him without
victor did not actually kill him, but made him a security against the exercise of that or any
prisoner. War is itself justifiable only on prin. other power. 1 shall say nothing of slavery
ciples of self-preservation; and therefore it by birth; except that the slavery of the child
gives no other right over prisoners but merely must be unlawfal, if that of the parent cannot
to disable them from doing harm to us, by con- be justified; and that when slavery is extended
fining their persons: much less can it give a to the issue, as it usually is, it may be unlawful
righi to kill, torture, abuse, plunder, or even to as to them, even though it is not so as to their
enslave, an enemy, when the war is over. parents. In respect to slavery used for the
Since therefore the right of making slaves by punishment of crimes against civil society, it is
captivity depends on a supposed right of founded on the same necessity, as the right of
slaughter, that foundation failing, the conse- inflicting other punishments; never extends to
quence drawn from it must fail likewise. But, the offender's issue; and seldom is permitted
secondly, it is said that slavery may begin jure to be domestic, the objects of it being gene-

civili;' when one man sells himself to ano- rally employed in public works, as the galley-
ther. This, if only meant of contracts to serve
or work for another, is very just: but wben therefore this statute was repealed in two years
applied to strict slavery, in the sense of the afterwards. And now it is laid down, that a
laws of old Rome or modern Barbary, is also slave or negro, the instant he lands in England,
impossible. Every sale implies a price, a becomes a freeman; that is, the law will pro-
. quid pro quo,' an equivalent given to the seller tect him in the enjoyment of bis person, and
in lieu of what he transfers to the buyer : but his property. Yet, with regard to any right
what equivalent can be given for lite, and which the master may have lawfully acquired
liberty, both of which (in absolute slavery) are to the perpetual service of John or Thomas,
held io be in the master's disposal ? His pro this will remain exactly in the same state as
perty also, the very price he seems to receive, before; for this is no more than the same state
devolves ipso facto to his master, the instant he of subjection for life, which every apprentice
becomes his slave. In this case therefore the submits to for the space of seven years, or
buyer gives nothing, and the seller receives no- sometimes for a longer term. Hence too it
thing of what validity then can a sale be, follows, that the infamous and unchristian prac-
which destroys the very principles upon which tice of withholding baptism from negro ser-
all sales are founded ? Lastly, we are told, vants, lest they should thereby gain their li.
that besides these two ways by which slaves berty, is totally without foundation, as well as
fiunt,' or are acquired, they may also be here without excuse. The law of England acts
ditary servi nascuntur;' the children of ac- upon general and extensive principles : it gives
quired slaves are, jure naturæ' by a negative liberty, rightly understood, that is, protection,
kind of birthright, slaves also. But this, being 10 a Jew, a Turk, or a Heathen, as well as to
built on the two former rights, must fall together those who profess the true religion of Christ;
* with them. If neither captivity, por the sale and it will not dissolve a civil obligation be-
of one's self, can by the law of nature and tween master and servant, on account of the
reason reduce the parent to slavery, much less alteration of faith in either of the parties :
can they reduce the offspring.

but the slave is entitled to the same protec-
“ Upon these principles the law of England tion in England before, as after, baptism;
abhors, and will not endure the existence of, and, whatever service the heathen negro owed
slavery within this nation : so that when an at- of right to bis American master, hy general
tempt was made to introduce it, by statute not by local law, the same (whatever it be) is
1 Edw. 6, c. 3, which ordained, that all idle he bound to repder when brought to England
vagabonds should be made slaves, and fed upon and made a Christian.” Vol. 1, p. 423.
bread, water, or small driok, and refuse meat;
should wear a ring of iron round their necks, what of very subile distinction, if not rather of

In these passages, there appears to be some-
arms, or legs; and should be compelled by
beating, chaining, or otherwise, to perform the

contradiction.
work assigned them, were it never so vile; the (0) See Locke on Governm, 8vo edit. b. 2,
spirit of the pation could not brook this condi- C. 4, p. 213.
tion, even in the most abandoned rogues; and (p) See bis Inst. Nat. Law, vol. 1, p. 480.

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66

slaves are in France. Consequently this kind slavery, I think myself warranted in saying, of slavery is not liable to the principal objec- that the justice and lawfulness of every species tions, wbich occur against slavery in general(9). of it, as it is generally constituted, except the Upon the whole of this controversy concerning limited one founded on the commission of

(9) Some writers there are, who deduce the throughout all the land, to all the inbabitants lawfulness of domestic slavery from the prao.

" thereof.' Lev. xxv. 8-10. tice of it amongst the Jews, and from some “ The manumission of the Hebrew slave on passages in the Old Testament which are the seventh year, was provided for by the other ibought to countenance it. See Vinn. in Instit. law. Under the expression, therefore, of all the Heinecc. ed.). 1, t. 3, p. 31. There are others inhabitants, foreign slaves must be comprewbo attempt to justify slavery by the New bended; for none but foreign slaves could reTestament, because it contains no direct pre- main to be manumitted in the fiftieth year, cepts against it. See Tayl. Elem. Civ. L. 434. My lords, there is a circumstance not I shall not attempt to examine either of these touched upon by my rev. brother; but there is opinions.-Hargrave.

a passage in the law, which I have always 'In the discussions respecting the African considered, as a strong argument of the lenity, slave trade, wbich were maintained during se- with which slaves were treated among the veral years preceding the abolition of that Jews, and of the efficacy of the provisions the traffic (by stat. 46 Geo. 3, c. 52, see also law had made, to obviate the wrongs and injuc. 119, and 51 G. 3, c. 23), the authority of the ries to which the condition is obnoxious.—My scriptures was appealed to by the oppugners lords, I am afraid I cannot, by memory, refer and defenders of the trade.On June 24, 1806, exactly to the place. But the noble earl there, the learned and eloquent Dr. Horsley, bishop with his Bible, I am sure will have the goodof St. Asaph, delivered in the House of Lords ness to help me out and turn up the passage upon the subject, a very powerful speech, from for me. My lords, it is a passage, in which which I have extracted the following passages. the law provides for the case of a slave, who

“My rev. brother" (the bishop of London) should be so attached to his master, that when “ told your lordships, that perpetual slavery the term of manumission, fixed by the law was not permitted by the Jewish law. That a should arrive, the slave should be disinclined native Jew could be held in slavery for seven to take advantage of it, and wish to remaja years only, at the longest. For he had a right with his master. And the law prescribes the to his freedom upon the first return of the sab. (form, in such case to be used, by wbich the batical year. And that a foreign slave pur- master and the slave should reciprocally bind chased in the market, or captivated in war, themselves, the slave to remain with bis master could be held in slavery for fifty years only, at for life, and the master to maintain him. This the longest. For the foreign slave had a right I have always considered as a strong indication to his freedom upon the first return of the year of the kindness, with which slaves were treated of Jubilee. And from these premises, my rev. among the Jews; else whence should arise that brother concluded, that perpetual slavery was attaclimept, which this law supposes ?” [Query unknown among the Jews.

if the bisbop bad in his mind the beginning of “I confess, I was carried away by the fair the 21st chapter of Exodus, if so, the words appearance of my rev. brother's arguments, are he shall serve himn for ever.'] till, to my great surprise and bis utter confu- “ But we are all in the wrong, it seems-my sion, the noble earl (of Westmoreland) rose, rev. broiber and I we reason from specious with his Bible in his band, and quoted chapter premises, but to false conclusions. The noble and verse against him!

earl has produced to your lordsbips a passage “My lords, with respect to the native in the Levitical Jaw, which enacts that the Hebrew slave, we have this law, which was foreign slave should be the property of bis. quoted by my rev. brother: If thy brother, master for ever. Whence the noble earl cop. O an Hebrew man, of an Hebrew woman, bé cludes that the perpetual servitude of foreign • sold unto thee, and serve thee six years, then slaves was actually sanctioned by the law. . in the seventh thou shalt let him go free from But, my lords, I must tell the noble earl, and I • thee. And when thou sendest him out free must tell your lordships, that the poble earl bas from thee, thou shalt not let him go away understanding at all of the technical terms of

empty. Thou shalt furnish him liberally the Jewish law.. Jn all the laws relating to the • out of thy flock, and out of thy flour, and out transfer of property, the words for ever,

of thy wine-press. Of that wherewith the sigoify only to the next jubilee. That is • Lord ihy God hath blessed thee, thou shalt the longest ! for ever' which the Jewish law give unto bim. Deut. xv. 12–14.

knows with respect to property. And this law, « And with respect to the foreigu slave, we which makes the foreign slave the property of have this law, quoted likewise by my rev. bro- bis master for ever, makes him no longer the ther : Thou shalt number onto thee seven master's property ihan to the 'Dext jubilee. * sabbaths of years, forty anľnine years. Then And; with the great attention the poble earl has • shalt thou cause the trumpet of the jubilee to given to the laws and bistory of the Jews, lie "sound throughout all the land. And ye shall must

t'know, that whed they were carried into .hallow the fiftieth year, and proclaim liberty captivity, they were told by their prophets, that

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of domestic Starery among the ancients.

slavery in Larope.

crimes against civil society, is at least doubtful; causes, which contributed to this alteration, that if in any case lawful, such circumstances none were probably more effectual, than ex. are necessary to make it so, as seldom coucur, perience of the disadvantages of slavery ; the and therefore render a just commencement of difficulty of continuing it; and a persuasion it barely, possible, and that the oppressive that the cruelty and oppression almost necesmanner in which it has generally commenced, sarily incident to it were irreconcilable with the the cruel means necessary to enforce its con- pure morality of the Christian dispensation, tinuance, and the mischiefs ensuing from the The history of its decline iu Europe bas been permission of it, furnish very strong presump- traced by many eminent writers, particularly tions against its justice, and at all events evince Bodin(s), Albericus Gentilis (t), Potgiesserus (u), the humanity and policy of those states, in Dr. Robertson (m), and Mr. Millar (r). It is which the use of it is no longer tolerated. sufficient here to say, that this great change Universality

But however reasonable it may began in Spain, according to Bodin, about the Le to doubt the justice of domestic end of the eighth century, and was become slavery, however convinced we general before the middle of the fourteenth

may be of its ill effects, it must be century. Bartolus, the most famed commenconfessed, that the practice is antient, and has tator on the civil law in that period, represents been almost universal. Its beginning may be slavery as in disuse; and the succeeding comdated from the remotest period, in which there mentators hold much the same language. are any traces of the bistory of mankind. It However, they must be understood with many commenced in the barbarous state of society, restrictions and exceptions ; and not to mean, and was retained, even when men were far ad- that slavery was completely and universally vanced in civilization. The nations of anti- abolished in Europe. Some modern civilians, quity most famous for countenancing the not sufficiently attending to this circumstance, system of domestic slavery were the Jews, the rather too hastily reprehend their predecessors Greeks, the Romans, and the antient Ger for representing slavery as disused in Europe. mans (r); amongst all of whom it prevailed, The truth is, that the ancient species of slavery but in various degrees of severity. By the an- by frequent emancipations became greatly ditient Germans it was continued in the countries minished in extent; the rempant of it was conthey over-run ; and so was transmitted to the siderably abated in severity; the disuse of the Decline of

various kingdoms and states, practice of enslaving captives taken ju the
which arose in Europe out of the wars between Christian powers assisted in pre-

ruins of the Roman empire. At venting the future increase of domestic slavery; length bowever it fell into decline in most and in some countries of Europe, particularly parts of Europe ; and amongst the various England, a still more effectual method, which

I shall explain hereafter, was thought of to perone of the crimes which drew down that judg- fect the suppression of it. Such was the exment upon them, was their gross neglect and piring state of domestic slavery in Revival of doviolation of these merciful laws respecting Europe at the commencement of mesticalavery manumission. And that, in contempt and de- the sixteenth century, when the fauce of the law, it had been their practice to discovery of America and of the western and hold their foreigo slaves in servitude beyond eastern coasts of Africa gave occasion to the the year of jubilee.”

introduction of a new species of slavery. It -My lords, although we have no ex. took its rise from the Portuguese, who, in order plicit probibition of the slave

trade in the New to supply the Spaniards with persons able to Testament, we have a most express reprobation sustain the fatigue of cultivating their new of the trade in slaves, even in that milder form, possessions in America, particularly the islands, in which it subsisted in ancieụt times. Such opened a trade between Africa and America a reprobation of it as leaves no believer at for the sale of negro slaves. This disgraceful liberiy to say, that the slave trade is not con- commerce in the human species is said to have demned by the.gospel. The reverend prelate begun in the year 1508, when the first imporDear me has cited the passage (1 Tim. i, tation of negro slaves was inade into Hispaniola 9-10] in which St. Paul mentions • men from the Portuguese settlements on the western stealers' among the greatest miscreants. • Men-coasts of Africa (y). In 1540 the emperor stealers, so we read in our English Bible. Charles the fifth endeavoured to stop the proBut the word in the original is avdgatodisaīsi gress of the negro slavery, by orders that all Andgamedicus is literally a slave trader,' and. no other word in the English language, but. (s) See his book De Republica, cap. 5, de slave trader, precisely renders it. It was in imperio servili. deed the technical name for a slave trader in (t) Jur. Gent. cap. de servitute. the Attic law.”

(u) Jur. Germ. de statu servorum. (r) It appears by Cæsar and Tacitus, that (w) Life of the emperor Charles the 5th, the ancient Germans had a kind of slaves be. | vol. 1. fore they emigrated from their own country. (x) Observations on the distinction of ranks See Cæs, de Bell. Gall. lib. 6, cap. 13, et Tac. in civil society. See also Tayl. Elem. Civ. L. de Mor. German, cap. 24, èt 25, et Potgiess. 434 to 439, de stat, servor, ap, Germ. lib. 1, cap. 1.

(y) Ander. Hist. Comm. V. 1, p. 336. VOL. XX.

in America.

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to introduce the slavery of negroes into England examined.

slaves in the American isles should be made law has no provisions to regulate any other
free; and they were accordingly manumitted slavery, therefore no slavery can be lawful in
by Lagasca the governor of ihe country, op England, except such as will consistently fall
condition of continuing to labour for their mas. under the denomination of villenage.
ters. But this attempt proved unsuecessful, The condition of a villein bad
and on Lagasca's return to Spain domestic most of the incidents which I have The condition
slavery revived and Aourished as before (3). before described in giving the idea
The expedient of having slaves for labour in of slavery in general. His service was uncer-
America was pot long peculiar to the Spaniards ; tain and indeterminate, such as his lord thought
being afterwards adopted by the orber Euro fit to require; or, as some of our ancient
peads, as they acquired possessions there. In writers (6) express it, he knew not in the evening
consequence of this general practice, negroes what he was to do in the morning, he was
are become a very considerable article in the bound to do whatever he was commanded. He
commerce between Africa and America ; and was liable to beating, imprisonment, and every
domestic slavery has taken so deep a root in other chastisement his lord might prescribe, ex-
most of our own American colonies, as well as cept killing and maiming (c). He was incapable
in those of other nations, that there is little of acquiring property for his own benefit, the
probability of ever seeing it generally sup. rule being quicquid acquiritur servo, acquiritur
pressed.

domino' (d). He was himself the subject of The attenup?

Here I conclude my observa- property; as such saleable and transmissible. tions on domestic slavery in ge- If he was a villein regårılant, be passed with neral. I have exbibited a view the manor or land to which he was annexed, of its nature, of its bad tendency, but might be severed at the pleasure of his

of its origin, of the argumeuts for lord (e) If he was a villein in gross, he was an and against its justice, of its decline in Europe, hereditament or a chattel real according to his and the iotroduction of a new slavery by the European nations into their American colonies. (b) See the extracts from them in Co. Litt. I shall now examine the attempt to obtrude 116, b. this new slavery into England. And here it (c) See Termes de la Ley, edit. of 1567, will be material to observe, that if on the de. voc. Villenage-Old Tepures, cap. Villenage*clension of slavery in this and other countries Fitzb. Abr. Coron. 17.—2 Ro. Abr, 1.–2 Inst. of Europe, where it is discountenanced, no 45.--and Co. Litt. 126, 127. means had been devised to obstruct the ad. (d) Co. Litt. 117, a. - The words, in pleadmission of a new slavery, it would have been ing seizin of villein-service, are very, expresvain and fruitless to have

attempted superseding sive of the lord's power over the villein's prothe ancient species. But I hope to prove, perty. In 1 E. 2, 4, it is pleaded, that the

that our ancestors at least were lord was seized of the villein and his ancestors
pot so short-sighted ; and that long come affaire rechat de cbar et de sank et de
and uninterrupted usage has esta- • fille marier et de eux tailler haut et bas, &c.'

blished roles, as effectual to prevent | The form in 5 E. 2, 157, is, “come de nos vinew slavery.

the revival of slavery, as their hu- leynes en fesant de luy notre provost en manity was successful in once suppressing it. .p'nant de luy rechat de char et de saunk et I shall endeavour to shew, that the law of redemption pur fille et fitz marier de luy et England never recognized any species of do. de ces aunc et a tailler haut et bas a noire mestic slavery, except the ancient one of vil- ' volente.' In the first of the above forms Jenage now expired, and has sufficiently pro. there is evidently a misprint; and the reading vided against the introduction of a new slavery should be a faire rechat instead of affaire under the name of villepage (a) or any other • rechat. As to the word provost in the denomination whatever. This proposition I second form, it seems to signifý• plunder,' and "hope to demonstrate from the following consi- perhaps the print should be proie' or proye' derations.

instead of provost.' I was led to this con1. I apprehend, that this will ap- jecture by the following proverb in Cotgrave's pear to be the law of England from French Dictionary, • qui a le vilain il a sa the manner of making title to a proye.' See Coigr. edit

. of 1678, voc. proye. villein.

However, in the Latin Entries the word proThe only slavery our law-books take the vost' is translated propositum,' wbich in a least notice of is that of a villein ; by whom barbarous sense of the word may be construed was meant, not the mere tenant by villeio ser- to signify . will' or 'pleasure,' and will make vices, who might be free in his person, but the the passage intelligible. In some Entries .provillein in blood and tenure; and as the English ' vost'is translated præpositus ;' but this word

cannot be understood in any sense that will (a) See Bodin de Republic. lib. 1, c. 5. make this use of it intelligible.

(a) Villenage is used to express sometimes The forms of pleading seizin of villein-serthe tenure of lands held by villein-services, and vices in the Latin Entries are very similar to sometimes the personal bondage of the villein; those I have extracted from the year-books. but throughout this argument it is applied in See Rast. Entr. 401, a. the latter sense only.

(e) Litt. sect. 181.

Arguments to
prore, tbat
the law of
England will
not admit a

1. Argument rom the manner of making title of a villein.

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