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title:“Thomas Lloyds Notes of the Pennsylvania Ratification Convention”
authors:Anonymous
date written:1787-12-11

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"Thomas Lloyds Notes of the Pennsylvania Ratification Convention." The Documentary History of the Ratification of the Constitution. Vol. 2. Ed. Merrill Jensen. Madison: Wisconsin Historical Society Press, 1976. 572-84. Print.

Thomas Lloyds Notes of the Pennsylvania Ratification Convention (December 11, 1787)

Wilson: I shall now proceed, Mr. President, to notice the remainder of the objections that have been suggested by the honorable gentlemen who oppose the system now before you.
We have been told, sir, by the honorable member from Fayette (John Smilie) "that the trial by jury was intended to be given up, and the civil law was intended to be introduced into its place in civil cases."
Before a sentiment of this kind was hazarded, I think, sir, the gentleman ought to be prepared with better proof in its support, than any he has yet attempted to produce. It is a charge, sir, not only unwarrantable, but cruel; the idea of such a thing, I believe, never entered into the mind of a single member of that Convention; and I believe further, that they never suspected there would be found with in the United States, a single person that was capable of making such a charge. If it should be well-founded, sir, they must abide by the consequences, but if (as I trust it will fully appear) it is ill-founded, then he or they who make it ought to abide by the consequences.
Trial by jury forms a large field for investigation, and numerous volumes are written on the subject; those who are well acquainted with it may employ much time in its discussion; but in a country where its excellence is so well understood, it may not be necessary to be very prolix, in pointing them out. For my part, I shall confine myself to a few observations in reply to the objections that have been suggested.
The member from Fayette (John Smilie) has labored to infer, that under the Articles of Confederation, the Congress possessed no appellate - jurisdiction; but this being decided against him, by the words of that instrument, by which is granted to Congress the power of "establishing courts for receiving and determining, finally, appeals in all cases of capture." He next attempts a distinction and allows the power of appealing from the decisions of the judges, but not from the verdict of a jury; but this is determined against him also, by the practice of the states. For in every instance which has occurred, this power has been claimed by Congress and exercised by the court of appeals; but what would be the consequence of allowing the doctrine for which he contends? Would it not be in the power of a jury, by their verdict, to involve the whole Union in a war? They may condemn the property of a natural or otherwise infringe the law of nations; in this case ought their verdict to be without revisal? Nothing can be inferred from this, to prove that trials by jury were intended to be given up. In Massachusetts, and all the Eastern States, their causes are tried by juries, though they acknowledge the appellate jurisdiction of Congress.
I think I am not now to learn the advantages of a trial by jury; it has excellencies that entitle it to a superiority over any other mode, in cases to which it is applicable.
Where jurors can be acquainted with the characters of the parties and the witnesses, where the whole cause can be brought within their knowledge and their view, I know no mode of investigation equal to that by a jury; they hear everything that is alleged; they not only hear the words, but they see and mark the features of the countenance; they can judge of (b) weight due to such testimony; and more-over, it is a cheap and expeditious manner of distributing justice. There is another advantage annexed to the trial by jury; the jurors may indeed return a mistaken, or ill founded verdict, but their errors cannot be systematical.
Let us apply these observations to the objects of the judicial department under this Constitution. I think it has been shown already, that they all extend beyond the bounds of any particular state; but further, a great number of the civil causes there enumerated depend either upon the law of nations or the marine law, that is, the general law of mercantile countries. Now, sir, in such causes, I presume it will not be pretended that this mode of decision ought to be adopted; for the law with regard to them is the same here as in every other country, and ought to be administered in the same manner. There are instances, in which I think it highly probable, that the trial by jury will be found proper; and if it is highly probable that it will be found proper, is it not equally probable, that it will be adopted? There may be causes depending between citizens of different states, and as trial by jury is known and regarded in all the states, they will certainly prefer that mode of trial before any other. The Congress will have the power of making proper regulations on this subject, but it was impossible for the Convention to have gone minutely into it; but if they could, it must have been very improper, because alterations, as I observed before, might have been necessary; and whatever the Convention might have done would have continued unaltered, unless by an alteration of the Constitution. Besides, there was another difficulty with regard to this subject. In some of the states they have courts of chancery and other appellate jurisdictions, and those states are as attached to that mode of distributing justice, as those that have none are to theirs.
I have desired, repeatedly, that honorable gentlemen, who find fault, would be good enough to point out what they deem to be an improvement. The member from Westmoreland (William Findley) tells us, that the trial between citizens of different states ought to be by a jury of that state in which the cause of action arose. Now it is easy to see, that in many instances, this would be very improper and very partial, for besides the different manner of collecting and forming juries in the several states, the plaintiff comes from another state; he comes a stranger, unknown as to his character or mode of life, while the other party is in the midst of his friends, or perhaps his dependents. Would a trial by jury in such a case insure justice to the stranger? But again, I would ask that gentleman, whether, if a great part of his fortune was in the hands of some person in Rhode Island, he would wish, that his action to recover it should be determined by a jury of that country under its present circumstances?
The gentleman from Fayette (John Smilie) says, that if the Convention found themselves embarrassed, at least they might have done thus much: they should have declared, that the substance should be secured by Congress; this would be saying nothing unless the cases were particularized.
JOHN SMILIE: I said the Convention ought to have declared, that the legislature should establish the trial by jury by proper regulations.
JAMES WILSON: The legislature shall establish it by proper regulations! So after all, the gentleman has landed us at the very point from which we set out. He wishes them to do the very thing they have done, to leave it to the discretion of Congress. The fact, sir, is, nothing more could be done.
It is well-known, that there are some cases that should not come before juries; there are others, that in some of the states never come before juries, and in these states where they do come before them, appeals are found necessary, the facts reexamined, and the verdict of the jury sometimes is set aside. But I think in all cases, where the cause has come originally before a jury, that the last examination ought to be before a jury likewise.
The power of having appellate jurisdiction, as to facts, has been insisted upon as a proof, "that the Convention intended to give up the trial by jury in civil cases and to introduce the civil law." I have already declared my own opinion on this point and have shown, not merely, that it is founded on reason and authority. The express declaration of Congress is to the same purpose. They insist upon this power as requisite to preserve the peace of the Union; certainly, therefore, it ought always to be possessed by the head of the Confederacy.
We are told, as an additional proof, that the trial by jury was intended to be given up, "that appeals are unknown to the common law; that the term is a civil law term, and with it the civil law is intended to be introduced." I confess I was a good deal surprised at this observation being made; for Blackstone, in the very volume which the honorable member (John Smilie) had in his hand and read us several extracts from, has a chapter entitled "Of Proceeding in the Nature of Appeals"; and in that chapter says, that the "principal method of redress for erroneous judgments, in the king's courts of record, is by writ of error to some superior court of appeals." Now it is well-known, that his book is a commentary upon the common law. Here then is a strong refutation of the assertion, "that appeals are unknown to the common law."
I think these were all the circumstances adduced to show the truth of the assertion, that in this Constitution, the trial by jury was intended to be given up by the late Convention in framing it.1 Has the assertion been proved? I say not, and the allegations offered, if they apply at all, apply in a contrary direction. I am glad that this objection has been stated, because it is a subject upon which the enemies of this Constitution have much insisted. We have now had an opportunity of investigating it fully, and the result is, that there is no foundation for the charge, but it must proceed from ignorance or something worse.
I go on to another objection which has been taken to this system, "that the expense of the general government and of the state governments will be too great, and that the citizens will not be able to sup-port them." If the state governments are to continue as cumbersome and expensive as they have hitherto been, I confess it would be dis-tressing to add to their expenses, and yet it might be necessary; but I think I can draw a different conclusion on this subject from more conjectures than one. The additional revenue to be raised by a general government will be more than sufficient for the additional expense; and a great part of that revenue may be so contrived as not to betaken from the citizens of this country; for I am not of opinion, that the consumer always pays the impost that is laid on imported articles; it is paid sometimes by the importer and sometimes by the foreign merchant who sends them to us. Had a duty of this nature been laid at the time of the peace, the greatest part of it would have been the contribution of foreigners. Besides, whatever is paid by the citizens is a voluntary payment.
I think, sir, it would be very easy and laudable to lessen the expenses of the state governments. I have been told (and perhaps it is not very far from the truth), that there are two thousand members of assembly in the several states; the business of revenue is done in consequence of requisitions from Congress, and whether it is furnished or not, it commonly becomes a subject of discussion. Now when this business is executed by the legislature of the United States, I leave it to those who are acquainted with the expense of long and frequent sessions of assembly to determine the great saving that will take place. Let me appeal to the citizens of Pennsylvania, how much time is taken up in this state every year, if not every session, in providing for the payment of an amazing interest due on her funded debt. There will be many sources of revenue, and many opportunities for economy, when the business of finance shall be administered under one government; the funds will be more productive, and the taxes, in all probability, less burthensome than they are now.
I proceed to another objection, that is taken against the power given to Congress of raising and keeping upstanding armies. I confess I have been surprised that this objection was ever made, but I am more so that it is still repeated and insisted upon. I have taken some pains to inform myself how the other governments of the world stand with regard to this power; and the result of my inquiry is, that there is not one which has not the power of raising and keeping upstanding armies. A government without the power of defense! It is a solecism!
I well recollect the principle insisted upon by the patriotic body in Great Britain; it is, that in time of peace, a standing army ought not to be kept up without the consent of Parliament. Their only apprehension appears to be, that it might be dangerous was the army kept up without the concurrence of the representatives of the people. Sir, we are not in the millennium. Wars may happen and when they do happen, who is to have the power of collecting and appointing the force then become immediately and indispensably necessary?
It is not declared in this Constitution, that the Congress shall raise and support armies. No, sir, if they are not driven to it by necessity, why should we suppose they would do it by choice, anymore than the representatives of the same citizens in the state legislatures? For we must not lose sight of the great principle upon which this work is founded. The authority here given to the general government flows from the same source as that placed in the legislatures of the several states.
It may be frequently necessary to keep upstanding armies in time of peace. The present Congress have experienced the necessity; and seven hundred troops are just as much a standing army as seventy thousand. The principle which sustains them is precisely the same. They may go further, and raise an army, without communicating to the public the purpose for which it is raised. On a particular occasion, they did this. When the commotions existed in Massachusetts, they gave orders for enlisting an additional body of two thousand men. I believe it is not generally known on what a perilous tenure we held our freedom and independence at that period. The flames of internal insurrection were ready to burst out in every quarter; they were formed by the correspondents of some state officers (to whom an allusion was made on a former day) and from one end to the other of the continent, we walked on ashes, concealing fire beneath our feet; and ought Congress to be deprived of power to prepare for the defense and safety of our country? Ought they to be restrained from arming until they divulge the motive which induced them to arm? I believe the power of raising and keeping up an army, in time of peace, is essential to every government. No government can secure its citizens against dangers, internal and external, without possessing it and sometimes carrying it into execution. I confess it is a power in the exercise of which all wise and moderate governments will be as prudent and forbearing as possible. When we consider the situation of the United States, we must be satisfied, that it will be necessary to keep up some troops for the protection of the western frontiers and to secure our interest in the internal navigation of that country. It will be not only necessary, but it will be economical on the great scale. Our enemies finding us invulnerable will not attack us, and we shall thus prevent the occasion for larger standing armies.2 I am now led to consider another charge that is brought against this system. It is said, that Congress should not possess the power of calling out the militia to execute the laws of the Union, suppress insurrections, and repel invasions, nor the President have the command of them when called out for such purposes.3 I believe any gentleman who possesses military experience will inform - you, that men without an uniformity of arms, accoutrements, and discipline are no more than a mob in a camp; that in the field, instead of assisting, they interfere with one another. If a soldier drops his musket, and his companion, unfurnished with one, takes it up, it is of no service because his cartridges do not fit it. By means of this system, a uniformity of arms and discipline will prevail throughout the United States.
I really expected that for this part of the system at least, the framers of it would have received plaudits, instead of censures, as they here discover a strong anxiety to have this body put upon an effective footing and thereby, in a great measure, to supersede the necessity of raising, or keeping up, standing armies.
The militia formed under this system, and trained by the several states, will be such a bulwark of internal strength as to prevent the attacks of foreign enemies. I have been told, that about the year 1744, an attack was intended by France upon Massachusetts Bay, but was given upon reading the militia law of that province.
If a single state could deter an enemy from such attempts, what influence will the proposed arrangement have upon the different powers of Europe!
In every point of view, this regulation is calculated to produce the best effects. How powerful and respectable must the body of militia appear, under general and uniform regulations! How disjointed, weak, and inefficient are they at present!4 I appeal to military experience for the truth of my observations.
The next objection, sir, is a serious one indeed; it was made by the honorable gentleman from Fayette John Smilie). "The Convention knew this was not a free government, otherwise they would not have asked the powers of the purse and sword." I would beg to ask the gentleman, what free government he knows that has not the powers of both? There was indeed a government under which we unfortunately were for a few years past, that had them not, but it does not now exist. A government without those powers is one of the improvements with which opposition wish to astonish mankind.
Have not the freest government those powers, and are they not in the fullest exercise of them? This is a thing so clear, that really it is impossible to find facts or reason more clear in order to illustrate it. Can we create a government without the power to act; how can it act without the assistance of men, and how are men to be procured without being paid for their services? Is not the one power the consequence of the other?
We are told, and it is the last and heaviest charge, "that this government is an aristocracy, and was intended so to be by the late Convention"; and we are told (the truth of which is not disputed) that an aristocratical government is incompatible with freedom. I hope, before this charge is believed, some stronger reasons will be given in support of it than any that have yet been produced.
The late Convention were assembled to devise some plan for the security, safety, and happiness of the people of the United States; if they have devised a plan, that robs them of their power, and constitutes an aristocracy, they are the parricides of their country, and ought to be punished as such. What part of this system is it that warrants the charge?
What is an aristocratic government? I had the honor of giving a definition of it at the beginning of our debates; it is, sir, the government of a few over the many, elected by themselves, or possessing share in the government by inheritance, or in consequence of territorial rights, or some quality independent of the choice of the people. This is an aristocracy, and this Constitution is said to be an aristocratical form of government, and it is also said that it was intended so to be by the members of the late Convention who framed it. What peculiar rights have been reserved to any class of men on any occasion? Does even the first magistrate of the United States draw to himself a single privilege or security that does not extend to every person throughout the United States? Is there a single distinction attached to him in this system more than there is to the lowest officer in there public? Is there an office from which anyone set of men whatsoever are excluded? Is there one of any kind in this system but is as open to the poor as to the rich, to the inhabitant of the country, as well as to the inhabitant of the city? And are the places of honor and emoluments confined to a few, and are these few the members of the late Convention? Have they made any particular provisions in favor of themselves, their relations, or their posterity? If they have committed their country to the demon of aristocracy, have they not committed themselves also, with everything they held near and dear to them?
Far, far other is the genius of this system. I have had already the honor of mentioning its general nature; but I will repeat it, sir. In its principle, it is purely democratical; but its parts are calculated in such manner as to obtain those advantages also which are peculiar to the other forms of government in other countries. By appointing a single magistrate, we secure strength, vigor, energy, and responsibility in the executive department. By appointing Senate, the members of which are elected for six years, yet by a rotation already taken notice of, they are changing every second year, we secure the benefit of experience, while, on the other hand, we avoid the inconveniences that arise from a long and detached establishment. This body is periodically renovated from the people, like a tree, which, at the proper season, receives its nourishment from its parent earth.
In the other branch of the legislature, the House of Representatives, shall we not have the advantages of benevolence and attachment to the people, whose immediate representatives they are?
A free government has often been compared to a pyramid. This allusion is made with peculiar propriety in the system before you; it is laid on the broad basis of the people; its powers gradually rise, while they are confined, in proportion as they ascend, until they end in that most permanent of all forms. When you examine all its parts, they will invariably be found to preserve that essential mark of free governments-a chain of connection with the people.
Such, sir, is the nature of this system of government; and the important question at length presents itself to our view. Shall it be ratified, or shall it be rejected by this Convention? In order to enable us still further to form a judgment on this truly momentous and interesting - point, on which all we have or can have dear to us on earth is materially depending, let us for a moment consider the consequences that will result from one or the other measure. Suppose we reject this system of government, what will be the consequence? Let the farmer say, he whose produce remains unasked for; nor can he find a single market for its consumption, though his fields are blessed with luxuriant abundance. Let the manufacturer and let the mechanic say, they can feel and tell their feelings. Go along the wharves of Philadelphia, and observe the melancholy silence that reigns. I appeal not to those who enjoy places and abundance under the present government; they may well dilate upon the easy and happy situation of our country. Let the merchants tell you, what is our commerce; let them say what has been their situation since the return of peace. An era which they might have expected would furnish additional sources to our trade and a continuance, and even an increase, to their fortunes. Have these ideas been realized, or do they not lose some of their capital in every adventure and continue the unprofitable trade from year to year, subsisting under the hopes of happier times under an efficient general government? The ungainful trade carried on by our merchants has a baneful influence on the interests of the manufacturer, the mechanic, and the farmer, and these I believe are the chief interests -of the people of the United States.
I will go further. Is there now a government among us that can do a single act, that a national government ought to do? Is there any power of the United States that can command a single shilling? This is a plain and a home question.
Congress may recommend, they can do more, they may require, but they must not proceed one step further. If things are bad now, and that they are not worse is only owing to hopes of improvement or change in the system, will they become better when those hopes are disappointed? We have been told by honorable gentlemen on this floor (John Smilie, William Findley, and Robert Whitehill) that it is improper to urge this kind of argument in favor of a new system of government, or against the old one. Unfortunately, sir, these things are too severely felt to be omitted; the people feel them; they pervade all classes of citizens and every situation from New Hampshire to Georgia; the argument of necessity is the patriot's defense, as well as the tyrant's plea.
Is it likely, sir, that, if this system of government is rejected, a better will be framed and adopted? I will not expatiate on this subject, but I believe many reasons will suggest themselves to prove that such expectation would be illusory. If a better could be obtained at a future time, is there anything essentially wrong in this? I go further, is there anything wrong that cannot be amended more easily by the mode pointed out in the system itself, than could be done by calling convention after convention before the organization of the government. Let us now turn to the consequences that will result if we assent to and ratify the instrument before you; I shall trace them as concisely as I can, because I have trespassed already too long on the patience and indulgence of the house.
I stated on a former occasion one important advantage; by adopting this system, we become a NATION; at present we are not one. Can we perform a single national act? Can we do anything to procure us dignity or to preserve peace and tranquility? Can we relieve the distress of our citizens? Can we provide for their welfare or happiness? The powers of our government are mere sound. If we offer to treat with a nation, we receive this humiliating answer: "You cannot in propriety of language make a treaty because you have no power to execute it." Can we borrow money? There are too many examples of unfortunate creditors existing, both on this and the other side of the Atlantic, to expect success from this expedient. But could we borrow money, we cannot command fund to enable us to pay either the principal or interest; for, in instances where our friends have advanced the principal, they have been obliged to advance the interest also, in order to prevent the principal from being annihilated in their hands by depreciation.5 Can we raise an army? The prospect of a war is highly probable. The accounts we receive by every vessel from Europe mention that the highest exertions are making in the ports and arsenals of the greatest maritime powers; but, whatever the con-sequence may be, are we to lay supine? We know we are unable under the Articles of Confederation to exert ourselves, and shall we continue so until a stroke be made on our commerce or we see the debarkation of an hostile army on our unprotected shores? Who will guarantee that our property will not be laid waste, that our towns will not be put under contribution by a small naval force and subjected to all the horror and devastation of war? May not this be done without opposition - , at least effectual opposition, in the present situation of our country? There may be safety over the Appalachian Mountains, but there can be none on our seacoast. With what propriety can we hope our flag will be respected, while we have not a single gun to fire in its defense?
Can we expect to make internal improvement, or accomplish any of those great national objects, which I formerly alluded to, when we cannot find money to remove a single rock out of a river?
This system, sir, will at least make us a nation, and put it in the power of the Union to act as such. We will be considered as such by every nation in the world. We will regain the confidence of our own citizens and command the respect of others.
As we shall become a nation, I trust that we shall also form a national character; and that this character will be adapted to the principles and genius of our system of government; as yet we possess none-our language, manners, customs, habits, and dress depend too much upon those of other countries. Every nation in these respects should possess originality. There are not on any part of the globe finer qualities, for forming a national character, than those possessed by the children of America: activity, perseverance, industry, laudable emulation, docility in acquiring information, firmness in adversity, and patience and magnanimity under the greatest hardships. From these materials, what a respectable national character may be raised! In addition to this character, I think there is strong reason to believe, that America may take the lead in literary improvements and national importance. This is a subject, which I confess, I have spent much pleasing time in considering. That language, sir, which shall become most generally known in the civilized world will impart great importance over the nation that shall use it. The language of the United States will, in future times, be diffused over a greater extent of country, than any other that we now know. The French, indeed, have made laudable attempts toward establishing an universal language, but, beyond the boundaries of France, even the French language is not spoken by one in a thousand. Besides the freedom of our country, the great improvements she has made and will make in the science of government will induce the patriots and literati of every nation to read and understand our writings on that subject, and hence it is not improbable that she will take the lead in political knowledge.
If we adopt this system of government, I think we may promise security, stability, and tranquility to the governments of the different states. They will not be exposed to the danger of competition on questions of territory or any other that have heretofore disturbed them. A tribunal is here founded to decide, justly and quietly, any interfering claim; and now is accomplished, what the great mind of Henry IV of France had in contemplation, a system of government, for large and respectable dominions, united and bound together in peace, under a superintending head, by which all their differences may be accommodated, without the destruction of the human race! We are, told by Sully, that this was the favorite pursuit of that good king during the last years of his life, and he would probably have carried it into execution had not the dagger of an assassin deprived the world of his valuable life. I have, with pleasing emotion, seen the wisdom and beneficence of a less efficient power under the Articles of Confederation in the determination of the controversy between the states of Pennsylvania and Connecticut but, I have lamented, that the authority of Congress did not extend to extinguish, entirely, the spark which has kindled a dangerous flame in the district of Wyoming.
Let gentlemen turn their attention to the amazing consequences which this principle will have in this extended country. The several states cannot war with each other; the general government is the great arbiter in contentions between them; the whole force of the Union can be called forth to reduce an aggressor to reason. What an happy exchange for the disjointed contentious state sovereignties!
The adoption of this system will also secure us from danger and procure us advantages from foreign nations. This, in our situation, is of great consequence. We are still an inviting object to one European power at least, and, if we cannot defend ourselves, the temptation may become too alluring to be resisted. I do not mean, that, with an efficient government, we should mix with the commotions of Europe. No, sir, we are happily removed from them and are not obliged to throw ourselves into the scale with any. This system will not hurry us in to war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large; this declaration must be made with the concurrence of the House of Representatives. From this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into a war. I cannot forbear, on this occasion, the pleasure of mentioning to you the sentiments of the great and benevolent man whose works I have already quoted on another subject. Mr. Neckar has addressed this country in language important and applicable in the strictest degree to its situation and to the present subject. Speaking of war, and the great caution that all nations ought to use in order to avoid its calamities: "And you, rising nation," says he, "whom generous efforts have freed from the yoke of Europe! let the universe be struck with still greater reverence at the sight of the privileges you have acquired, by seeing you continually employed for the public felicity. Do not offer it as a sacrifice at the unsettled shrine of political ideas, and of the deceitful combinations of warlike ambition; avoid, or at least delay participating in the passions of our hemisphere; make your own advantage of the knowledge which experience alone has given to our old age, and preserve for a long time, the simplicity of childhood. In short, honor human nature, by showing that when left to its own feelings, it is still capable of those virtues that maintain public order, and of that prudence which insures public tranquility.
Permit me to offer one consideration more that ought to induce our acceptance of this system. I feel myself lost in the contemplation of its magnitude. By adopting this system, we shall probably lay a foundation for erecting temples of liberty in every part of the earth. It has been thought by many, that on the success of the struggle America has made for freedom will depend the exertions of the brave and enlightened of other nations. The advantages resulting from this system will not be confined to the United States; it will draw from Europe many worthy characters who pant for the enjoyment of freedom. It will induce princes, in order to preserve their subjects, to restore to them a portion of that liberty of which they have for many ages been deprived. It will be subservient to the great designs of Providence with regard to this globe; the multiplication of mankind, their improvement in knowledge, and their advancement in happiness.

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1787-12-11

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