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FW: Brophy on Huebner, _The Southern Judicial Tradition_

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  • A.J. Wright
    this title may be of interest to some subscribers....aj wright ... From: H-Net Review Project Distribution List [mailto:H-REVIEW@H-NET.MSU.EDU] On Behalf Of
    Message 1 of 1 , Jul 11, 2000
      this title may be of interest to some subscribers....aj wright

      -----Original Message-----
      From: H-Net Review Project Distribution List
      [mailto:H-REVIEW@...] On Behalf Of H-Net Reviews
      Sent: Tuesday, June 06, 2000 9:56 AM
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      Subject: Brophy on Huebner, _The Southern Judicial Tradition_

      Published by H-SHEAR@... (June, 2000)

      Timothy S. Huebner. _The Southern Judicial Tradition: State Judges
      and Sectional Distinctiveness, 1790-1890_. Athens: University of
      Georgia Press, 1999. xiii + 263 pp. Notes, bibliography, and
      index. $45.00 (cloth), ISBN 0-8203-2101-X.

      Reviewed for H-SHEAR by Alfred L. Brophy <abrophy@...>,
      Oklahoma City University School of Law

      Timothy Huebner's _The Southern Judicial Tradition_ explores the
      development of Southern legal thought in the nineteenth century
      through jurisprudential-biographical studies of six judges: Spencer
      Roane of the Virginia Court of Appeals, John Catron of the Tennessee
      Supreme Court (and later of the United States Supreme Court, though
      Huebner is less interested in his time there), Joseph Henry Lumpkin
      of Georgia Supreme Court, John W. Hemphill of the Texas Supreme
      Court, Thomas Ruffin of the North Carolina Supreme Court, and George
      Washington Stone of the Alabama Supreme Court. The book, following
      the design of Richard Hofstadter's _American Political Tradition_
      and G. Edward White's _American Judicial Tradition_, employs the
      case studies to make several claims about Southern legal thought.
      First, it was linked to a national judicial tradition, which took
      its law from national treatises and was bound (particularly in
      criminal law) to precedent. That tradition also showed remarkable
      concern for the community's welfare and sometimes adapted the law to
      concerns of humanity and expediency. Second, Southern judges
      inhabited a world of sectional feelings, which led them (sometimes)
      to promote secession and affected their decisions in cases involving

      Professor Huebner's study, exploring as it does the central
      tendencies of Southern legal minds, is located at the center of at
      least three important debates in nineteenth century American legal
      history. It may be appropriate to use those debates as a vehicle
      for exploring Huebner's contribution to our understanding of legal
      history. The first is represented by William Novak's _The People's
      Welfare_, which portrays a pervasive ethic of regulation. Huebner
      can test whether Novak's findings should be applied to the South and
      whether some judges deviated from Novak's model. The second, and
      perhaps most contentious, is represented by Peter Karsten's _Heart
      versus Head: Judge-Made Law in Nineteenth-Century America_, which
      argues that in the rare instances when judges departed from
      precedent, they were driven by considerations of sentiment--not cold
      calculations of economics. Karsten poses a direct challenge to
      Morton Horwitz's 1977 book _Transformation of American Law_, which
      found that judges in the first half of the nineteenth century
      self-consciously recrafted common law rules to promote economic
      growth. One can compare the motives of Huebner's judges to see
      whether they fit Horwitz's model or Karsten's, or some other model.
      Finally, there is the question, represented by a series of articles
      from Ariela Gross, Adrienne Davis, and Sarah Barringer Gordon, among
      many others, of whether there was a unified legal mind in the
      nineteenth century.[1] Indeed, one wonders whether Huebner's study
      might more appropriately be called "Southern Legal Traditions"?

      Huebner's project is composed, then, of a series of informative
      essays on his six subjects, sandwiched between introductory and
      concluding essays, which present his themes in remarkably lucid
      terms. The judges are presented in roughly chronological order, and
      Huebner picks certain unifying themes of each jurist's career as the
      focal points of the essays. Roane (1762-1822) served on the General
      Court (the final court of criminal appeals and the intermediate
      court of appeals in civil matters) from 1789 until his 1804
      appointment to the Virginia Court of Appeals, where he served until
      his death in 1822. Roane is an important bridge between the
      Revolution and the antebellum era. He was educated at William and
      Mary under Marshall Wythe, who himself was an important link to
      Enlightenment legal thought in eighteenth century Virginia. Roane
      shared some of the traits of the Enlightenment, like a moderate
      opposition to slavery and support for judicial review. Huebner
      interprets Roane as different from judges of the mid-nineteenth
      century who "often freely fashioned the law to fit the changing
      needs of antebellum society and conceived of themselves as
      performing a legislative function" (p. 15). Here I'm a little unsure
      of how different Roane is from Ruffin. One piece of Huebner's
      evidence that Roane "clearly did not perceive of the court or the
      law as a means of shaping society," is Roane's statement in _Young
      v. Gregorie_, 7 Va. 446 (1803), that "I am compelled to yield my
      impressions, relative to the real justice of the appellant's cause
      to the established principles of the law, as settled by successive
      and long existing doctrine." Yet one can (through the magic of
      Lexis) find many similar statements by even Lumpkin, who is more
      willing than either Roane or Ruffin to remake the law to comport
      with his views on humanity, economy, and society. Lumpkin observes,
      for example, that "Courts are compelled to administer the law as it
      is." _Andrews v. Bonner_, 26 Ga. 520, 523 (1858).[2]

      Some of Roane's other opinions suggest he was willing to modify
      property rights. In _Currie's Administrator v. Mutual Assurance
      Society_, 14 Va. 315 (1809), Roane, for instance, interpreted a
      modification in the charter of an insurance company. The company
      began by providing coverage to both urban and rural insureds at the
      same cost, but later began charging more to urban insureds because
      of the increased risk they posed. Roane upheld that alteration by
      reference to the nature of public corporations (p. 28-29).
      _Currie's Administrator_ allowed more power to interfere with
      contracts than Roane's fellow Virginian John Marshall allowed in
      _Dartmouth College_. The comparison of _Currie's Administrator_
      with _Dartmouth College_ suggests the importance of public
      rights--and how those rights were eclipsed by private rights later.

      We then shift from Virginia to Tennessee, where John Catron
      (1786-1865) served as a justice on the Supreme Court of Errors and
      Appeals from 1824 until his impolitic support of Martin Van Buren
      led to his replacement in 1836. Early the next year, President
      Andrew Jackson nominated Catron to the United States Supreme Court.
      Catron professed less fidelity to precedent than did Roane (p. 45),
      although one should be cautious to link public statements about
      precedent with a judge's actual voting behavior. Early in his
      career, he supported native land claims pursuant to treaty rights,
      although those cases seemed relatively easy ones. It is difficult
      to see how some of those cases, like _Blair v. Pathkiller's Lessee_,
      10 Tennessee 407 (1830), could have been decided differently
      consistent with the federal government's treaty obligations.

      Catron appears as a Jacksonian Jurist, to borrow a phrase from
      Charles Smith's 1936 biography of Chief Justice Roger Taney. His
      opinion in _State v. Foreman_, 16 Tenn. 256 (1835), supported white
      property rights over those of natives. It presents a conflict
      between morality and law, which Catron acknowledged. But Catron did
      not allow sentiments of morality to dictate the result. He rested
      on the "discovery" doctrine. Similarly, in _Fisher's Negroes v.
      Dabbs_, 14 Tennessee 119 (1834), an important though under-studied
      case, Catron upheld a will manumitting slaves and providing that
      they be transported outside the state. Catron interpreted the will
      broadly, to require that the slaves be transported from the United
      States. Catron reaches an antislavery conclusion in _Dabbs_, even
      though he is proslavery. It is an important Southern counterpart to
      the Northern opinions that reached proslavery results despite
      judges' antislavery feelings, which Robert Cover wrote about in
      _Justice Accused_. Catron also opposed the Tennessee bank in two
      editorials in the Nashville Journal in 1829 and, in a series of
      contentious claims between first settlers and subsequent good faith
      improvers, decided consistently in favor of the newer settlers.

      Huebner portrays a strong contrast between Catron and his next
      subject, Joseph Henry Lumpkin (1799-1867). Lumpkin, who served on
      the Georgia Supreme Court from its inception in 1846 through the
      Civil War, was an evangelical Whig. Lumpkin is an especially likely
      candidate for inclusion in this study because he spoke and wrote
      frequently about the need for codification and industrial
      development, as well as religious reform, and was a founder of the
      University of Georgia law school. How did Lumpkin's political and
      religious ideology influence his decisions? There are several

      Perhaps the central case in Huebner's analysis is _Shorter v.
      Smith_, 9 Ga. 517 (1851). The plaintiffs owned ferries across two
      rivers. They sought to enjoin the construction of nearby bridges,
      based on their franchise. Lumpkin easily dismissed the claim in an
      opinion rich with Whig rhetoric about the importance of competition
      and Democratic rhetoric about the importance of preserving the
      government's power. Although English precedent supported broad
      construction of rights from grants and some early American cases
      also construed franchises "to exclude all contiguous competition,"
      Lumpkin would not grant such exclusive rights. He quoted Chief
      Justice Taney's reasoning in _Charles River Bridge_: "A State ought
      never to be presumed to surrender their power, because, like the
      taxing power, the whole community have an interest in preserving it
      undiminished." Lumpkin went further than Taney in observing that
      "The continued existence of the government would be of no great
      value, if by implication and presumptions, it was disarmed of its
      creation, and the functions it was designed to perform, transferred
      to the hands of privileged corporations." 9 Ga. at 525. Lumpkin
      distanced himself from the Whig jurist Chancellor Kent, although he
      emphasized competition. "[W]e have and in the very nature can have,
      no other protection but that which results from free and
      unrestricted competition." 9 Ga. at 527. In _Shorter_ Lumpkin is in
      the mainstream of American legal thought regarding vested rights in
      the 1850s, for, as he said, "if one principle is settled in this
      country beyond all hazard of a change, it is, that in grants by the
      public, nothing passes by implication." 9 Ga. at 524.

      Huebner makes me wonder when is it appropriate to emphasize
      continuity between jurists on the issue of vested rights? Is there
      a unified Southern approach? If so, how do we explain cases like
      _Fisher v. Higgins_, 21 Ky. (5 T.B. Mon.) 140 (1827)? In _Fisher_
      several Tennessee judges differed on the constitutionality of
      retroactive application of a law that allowed prior purchases of
      property to oust those who mistakenly occupied and then made
      improvements to the land.[3] And if there is a unified Southern
      approach, why are we talking about Catron as a Jacksonian jurist and
      Lumpkin as an evangelical Whig? Is it because of the differences of
      Catron and Lumpkin towards economic development? Recent scholarship
      suggests that there was a near consensus among all Americans over
      the desirability of progress and economic growth.[4] The differences
      may be characterized as those between old and new wealth. For, as
      Emerson put it in "The Conservative," all wanted a share of
      property: "You quarrel with my conservatism, but it is to build up
      one of your own; it will have a new beginning, but the same course
      and end, the same trials, the same passions; among the lovers of
      the new I detect a jealousy of the newest." _Emerson's Essays_ 178
      (Joel Porte ed., 1983).

      I do think that there are important differences between Whigs and
      Democrats on a number of issues, including vested rights. But those
      differences appear at the margins. Take Lumpkin's opinion in
      _Bishop and Parsons v. Mayor and Aldermen of Macon_, 7 Ga. 200
      (1849). Macon officials burned a house as a fire break, then denied
      compensation, claiming that the house would have burned anyway.
      Well-established doctrine held that a town could burn houses in such
      instances with impunity; nevertheless, Lumpkin required partial
      payment on the idea that the house was burned prematurely and that
      some of the furnishings could have been saved if it had not been
      burned so quickly. Such was Lumpkin's careful balancing of
      community and individual interests.

      Lumpkin disregarded precedent in some instances, at least once with
      allusion to outmoded feudal rules. He wrote in _Shorter_, for
      example, that "In England and other countries, which are governed by
      force, the performance of public duties by inn-keepers, owners of
      bridges and ferries, &c., can be coerced by the enforcement of legal
      penalties. Not so here . . . ." 9 Ga. at 527. And in simplifying
      the rules regarding conveyancing, Lumpkin wrote that "The nations of
      the earth are clamoring for bread, they will be put off no longer
      with a stone. They ask for reasons, they will not be satisfied by
      mere precedents, however hoary with antiquity. It is quite too late
      in the age of the world, to substitute words for things, sound for
      sense, the shadow for the substance." _Leary v. Durham_, 4 Ga. 593,
      602 (1848). Shades of Emerson's "American Scholar," it seems to me.
      But more often Lumpkin followed precedent, as in _Maddox v.
      Simmons_, 31 Ga. 512 (1860), where he followed well-established
      contract law and refused to investigate the apparent unfairness of a
      contract entered into by an old man who may have been mentally
      disabled. Lumpkin self-consciously denied his right to change the
      law in some instances.[5] Like Catron, he issued an antislavery
      decision despite his proslavery sentiments (pp. 93-94).

      Thomas Ruffin (1789-1865), whom Huebner calls a "judicial
      pragmatist," presents a contrast with Lumpkin. Ruffin served on
      the North Carolina Supreme Court from 1829 until 1853 and earned a
      reputation as a strict adherent to legal logic with his opinion in
      _State v. Mann_. The case arose from the prosecution of John Mann
      for assaulting Lydia, a slave whose services he had hired for one
      year. Mann hit her when she committed a small offense, and she ran
      away. Mann then shot her. A jury convicted him of battery, but
      Ruffin overturned the conviction, arguing that "the power of the
      master must be absolute, to render the submission of the slave
      perfect." 13 N.C. 263, 266 (1829). _Mann_ combined considerations
      of expediency, experience ("in the actual conditions of things, it
      must be so"), and reasoning based on legal precedent.

      Ruffin wrote illuminating opinions on property rights, which show a
      balancing of the interests of state regulation and individual
      property rights. In _Hoke v. Henderson_, 15 N.C. 1 (1833), Ruffin
      upheld the right of a court clerk to continue in office until his
      term expired. Ruffin held that the legislature could not terminate
      the clerk's position when it wanted to switch from appointed to
      elected clerks (pp. 135-137). _Hoke_ sprung from Ruffin's respect
      for property rights. Another key property opinion was _Raleigh &
      Gaston Railroad v. Davis_, 19 N.C. 451 (1837). _Davis_ upheld a
      North Carolina statute allowing a railroad to purchase private
      property without the owner's consent. Davis argued that the state
      could not take property for use by the railroad, for the property
      was not being taken for a public purpose. Ruffin recognized that
      the act benefitted a private company, but he linked public and
      private interests. "An immense and beneficial revolution has been
      brought about in modern times, by engaging individual enterprise,
      industry, and economy, in the execution of public works of internal
      improvement." (19 N.C. at 469) Those private interests undertook to
      build and operate the railroad, which in turn benefitted the public.
      Such reasoning was in line with the dominant Southern ideology,
      which sought to protect the state from upheaval and thus
      subordinated individual liberty interests to the state.

      Often Ruffin discussed the importance of following precedent. He
      wrote, for example, in _State v. Ephrain_, 19 N.C. 160, 167 (1836):

      It is true, that the exigencies of society have, from time to
      time, obtained, in some instances, judicial modifications of
      ancient rules of law, but this has been effected by slow and
      almost imperceptible degrees, and without a recurrence, at
      those times, to first principles, until a succession of
      inadvertent departures from the old rule, have so strongly
      established exceptions to it, that a court subsequently
      reviewing the whole ground, finds it more difficult and
      dangerous to attempt to re-establish the principle of its
      integrity, by retracing the steps of those who had lost sight
      of it, than to receive and enforce the rule, with its
      exceptions, all as they came down to us. . . . Courts cannot
      thus change their position, and frame anew original rules of
      law, or introduce exceptions not before found, either in
      terms or in principles.

      In light of his references to precedent I wonder whether "pragmatist" is
      the best way to characterize Ruffin's approach. He took the world as it
      was, followed precedent rather than tried to change it, and sought
      limitations on government.

      But what of the differences between Ruffin and Lumpkin? Ruffin seems to
      be the eighteenth-century jurist -- precedent bound and taking the human
      condition the way it is. Lumpkin, to my reading, is more willing to
      change the law than was Ruffin. One might also look to Lumpkin's opinion
      in _Beall v. Beall_, 8 Ga. 210, 223 (1850), where he interpreted a
      private act that legitimated two illegitimate children. He upheld the act
      over claims that it was an unconstitutional interference with the property
      rights of the decedent's other child. Lumpkin noted that Ruffin had
      upheld the right of the legislature to legitimate a child even without the
      father's consent, but Lumpkin thought that went too far: "I should
      seriously question the power of the Legislature to pass a private Act,
      changing the law of descent, as it respects one individual of the
      community, without his consent . . . . [O]ne of the essential elements of
      the law is, it must be general -- a rule prescribed for the civil conduct
      of the whole community, and not a transient order from a superior, to or
      concerning a particular person." I think the case illustrates some of the
      differences between two of the South's greatest antebellum jurists.[6]

      There are two other jurists who present fine contrasts -- John
      Hemphill of Texas (1803-1862) and George Washington Stone of Alabama
      (1811-1894). Hemphill was born in South Carolina and educated at
      Washington and Jefferson College in Pennsylvania and in the law
      office of David J. McCord, a prominent lawyer, codifier, and
      reporter, as well as the husband of one of the leading proslavery
      writers of the 1850s. Hemphill was admitted to practice in 1828 and
      he spent the next decade in South Carolina, practicing law and
      engaging in politics. As editor of the _Sumter Gazette_ he
      supported nullification. He moved to Texas in 1838, hoping for
      political and economic advancement. His hopes were realized. He
      was appointed a district judge within two years of his arrival.
      Less than a year later, he ascended to the Texas Supreme Court, a
      position he held until 1856 when he went into the United States

      Working in a remote province, Hemphill had little in the way of
      precedent. Justices of the Texas Supreme Court took advantage of
      that opportunity to craft a law suited to Texas's needs. Hemphill
      construed homestead exemptions broadly, for instance, to protect
      families from losing their homes through bankruptcy. Perhaps most
      illuminating, though, is Huebner's argument that the Texas Supreme
      Court treated slaves more leniently than other Southern courts in
      part because there was a smaller fear of abolitionists in Texas than
      elsewhere (p. 119). For example, Texas allowed slaveholders to
      emancipate slaves via will, if the slaves were freed outside the
      state, at a time when other Southern courts were restricting that
      right (p. 122). Whether that result was based on the justices'
      sense of security from abolitionists, their sentiments of humanity
      towards slaves, their desire to decrease the black population of
      Texas, or some other reason is less clear. One might hope that in
      Hemphill's case the relationship he had with a slave named Sabina
      and the two children they had together might have influenced him
      towards antislavery results. Indeed, he sent both of the children
      to be educated by abolitionists in Ohio (p. 125). Hemphill,
      nevertheless, was a strong support of secession in Congress (p.

      George Washington Stone, who served on the Alabama Supreme Court
      from 1856 to 1865 and again from 1876 until his death in 1894, is
      the only jurist Huebner studies who served after the war. Stone was
      born in Virginia, grew up and was educated in law in Tennessee, then
      moved to Alabama, where prospects for young lawyers were good (pp.
      160-161). Stone illustrates well the conflicts that Southern jurists
      faced between national and state interests. In his case, the
      conflicts he decided were between the Confederacy and Alabama. In a
      series of opinions Stone, citing Marshall Court opinions, upheld the
      right of the Confederacy to conscript soldiers (pp. 163-167).
      Removed from the Supreme Court during Reconstruction in 1865, Stone
      came back to the court in 1876 as Reconstruction was undone in
      Alabama (p. 168).

      Stone's post-Reconstruction opinions again show the hallmarks of
      Southern jurisprudence, including upholding Alabama's
      anti-miscegenation law over claims that it violated the Fourteenth
      Amendment. He later proffered a ridiculously narrow interpretation
      of what constituted state action, which allowed court officials to
      exclude blacks from the grand jury pool free from Fourteenth
      Amendment scrutiny. He wielded constitutional arguments, however,
      to protect corporations from laws he viewed as burdening them
      disproportionately (pp. 174-175). Stone was, thus, both committed
      to white Southern principles and to the national bar's respect for
      business. He is a fine end to the six biographies, which shows the
      development of Southern jurisprudences within guideposts established
      by the United States Supreme Court, treatises, and state courts from
      other sections of the country.

      Huebner's judges, then, have a great deal to say on the themes
      advanced by William Novak, Peter Karsten, and Morton Horwitz. They
      are in line with the judges described by Novak, who seek a
      well-regulated society. Karsten's heart paradigm does not seem to
      fit Huebner's judges quite as well. Thomas Ruffin wrestled aside
      "the feelings of the man" in his breast in favor of the "duty of the
      magistrate." Huebner presents one of the strongest book-length
      defenses of Morton Horwitz's _Transformation of American Law_ in
      recent years. His judges look very much like Horwitz's ambitious
      jurists who recrafted the law when they could to comport with their
      own visions of economy and society.

      Maybe one unifying theme is the subordination of private interests
      to the public good. There is much in proslavery writing that
      suggests calculations of utility should triumph over individual
      considerations. One of the great distinctions between Northern and
      Southern legal thought may be the importance of preservation of the
      state over individual liberty. Much, much more research needs to be
      done on this point to test that thesis. But when one asks the
      obvious question: how much did the institution of slavery affect the
      development of Southern legal thought, the answer turns in important
      ways on the identifying differences that cut across judges.
      Certainly, slavery jurisprudence itself was affected, but what about
      other areas? Was it responsible for the development of a doctrine
      that celebrated the protection of the public at the expense of
      property rights?

      Huebner has contributed a really fine work at the intersection of
      several key roads in nineteenth century legal history. It may very
      well be that the most profitable studies in the next few years will
      mine his techniques of biographical sketches to recover the main
      themes of American legal thought and see how the whole system of
      thought--religious, political, moral, and economic ideas--fit
      together in American minds. If so, we can model Huebner's
      techniques. He offers a sophisticated interpretation of the
      cultural forces behind the shifts in legal thought in the nineteenth


      [1]. Ariela Gross, "Pandora's Box: Slave Character on Trial in the
      Antebellum Deep South," in _Slavery and the Law_ 291-327 (Paul
      Finkelman ed., 1997); Sarah Barringer Gordon, "'Our National
      Hearthstone': Anti-Polygamy Fiction and the Sentimental Campaign
      Against Moral Diversity in Antebellum America," 8 _Yale J. L. &
      Hum._ 295 (1996); Adrienne D. Davis, "The Private Law of Race and
      Sex: An Antebellum Perspective," 51 _Stan. L. Rev._ 221-88 (1999).

      [2]. In case you have not already heard, both Lexis and Westlaw
      have made great strides in the past year in putting antebellum state
      cases into their databases. See also _Caldwell v. Justices of
      Gilford County_, 27 N.C. 315, 330-31 (1844) (Ruffin) ("[T]hey are to
      found their judgment on what they believe the legislature intends on
      it; in other words, they are to act on what they believe the law to
      be, and not what they think it ought to be. It is a criminal
      perversion of power, to use it for a purpose, for which the
      legislature did not confer it, and with the view of defeating the
      end the legislature had in entrusting the power to them. In fine, in
      this case, it would amount to an attempt by a few individuals, to
      set up their will against the general sentiments and habits of
      mankind, and the legislative authority of the country.")

      [3]. Of course even Chancellor Kent thought there could be some
      retroactive liability. He wrote a brief to that effect in the
      Mississippi Supreme Court in 1846. (_Port Nevins Banks_, 6 Smedes &
      Marshall 513).

      [4]. See, e.g., William Gienapp, "The Myth of Class in Jacksonian
      America," 6 _Journal of Policy History_ 247-49 (1994).

      [5]. See _Cleland v. Waters_, 19 Ga. 35, 49 (1855) ("We feel the
      full force of these arguments. They have been addressed to this and
      other Courts before, but have failed to produce conviction, for the
      simple reason that such appeals are made to the wrong tribunal.
      They should be submitted to the halls of legislation, and not to the
      Courts of Justice. It is not the province of the Courts _to make_
      public policy, but simply _to declare it_, as it exists. . . .
      Public opinion is too transient and changeable to become a rule of
      decision. It must take the shape of settled law to become a rule of
      decision. It must take the shape of settled law before the Courts
      will undertake to enforce it.") (emphasis in original).

      [6]. See also _Patterson v. Hickey_, 32 Ga. 156, 164 (1861)
      (Lumpkin) (mentioning Roane and Ruffin and contrasting them with
      Kent and Story).

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