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Home -> Henry Sumner Maine, Sir -> Ancient Law -> CHAPTER II

Ancient Law - CHAPTER II






6. CHAPTER V continue


8. CHAPTER VI continue



11. CHAPTER VIII continue


13. CHAPTER IX continue




WHEN primitive law has once been embodied
in a Code, there is an end to what may be called
its spontaneous development. Henceforward the
changes effected in it, if effected at all, are effected
deliberately and from without. It is impossible
to suppose that the customs of any race or tribe
remained unaltered during the whole of the long
in some instances the immense interval be-
tween their declaration by a patriarchal monarch
and their publication in writing. It would be
unsafe too to affirm that no part of the alteration
was effected deliberately. But from the little
we know of the progress of law during this period,
we are justified in assuming that set purpose
had the very smallest share in producing change.
Such innovations on the earliest usages as disclose
themselves appear to have been dictated by
feelings and modes of thought which, under our
present mental conditions, we are unable to
comprehend. A new era begins, however, with
the Codes. Wherever, after this epoch, we trace
the course of legal modification, we are able to
attribute it to the conscious desire of improve-
ment, or at all events of compassing objects other
than those which were aimed at in the primitive


It may seem at first sight that no general
propositions worth trusting can be elicited from
the history of legal systems subsequent to the
codes. The field is too vast. We cannot be
sure that we have included a sufficient number of
phenomena in our observations, or that we accu-
rately understand those which we have observed.
But the undertaking will be seen to be more
feasible, if we consider that after the epoch of
codes the distinction between stationary and pro-
gressive societies begins to make itself felt. It
is only with the progressive societies that we are
concerned, and nothing is more remarkable than
their extreme fewness. In spite of overwhelming
evidence, it is most difficult for a citizen of Western
Europe to bring thoroughly home to himself the
truth that the civilisation which surrounds him
is a rare exception in the history of the world.
The tone of thought common among us, all our
hopes, fears, and speculations, would be materially
affected, if we had vividly before us the relation
of the progressive races to the totality of human
life. It is indisputable that much the greatest
part of mankind has never shown a particle of
desire that its civil institutions should be improved
since the moment when external completeness
was first given to them by their embodiment
in some permanent record. One set of usages
has occasionally been violently overthrown and
superseded by another ; here and there a primitive
code, pretending to a supernatural origin, has
been greatly extended, and distorted into the
most surprising forms, by the perversity of
sacerdotal commentators ; but, except in a small


section of the world, there has been nothing like
the gradual amelioration of a legal system. There
hasjbeen_ material civilisation, , but, instead of
the civilisation expanding the law, the law has
limited the civilisation. The study of races in
their primitive condition affords us some clue
to the point at which the development of certain
societies has stopped. We can see that Brah;
minical India has not passed beyond a stage
which occurs in the history of all the families
of mankind, the stage at which a rule of law is
not yet discriminated from a rule of religion.
The members of such a society consider that
the transgression of a religious ordinance should
be punished by civil penalties, and that .the
violation of a civil duty exposes the delinquent
to divine correction. In China this point has
been passed, but progress seems to have been
there arrested, because the civil laws are co-
extensive with all the ideas of which the race is
capable. The difference between the stationary
and progressive societies is, however, one of ^ the
great secrets which inquiry has yet to penetrate.
Among partial explanations of it I venture to
place the considerations urged at the end of the
last chapter. It may further be remarked that
no one is likely to succeed in the investigation
who does not clearly realise that the stationary
condition of the human race is the rule, the pro-
gressive the exception. And another indispensable
condition of success is an accurate knowledge
of Roman law in all its principal stages. The
Roman jurisprudence has the longest known
history of any set of human institutions. The


character of all the changes which it underwent
is tolerably well ascertained. From its commence-
ment to its close, it was progressively modified
for the better, or for what the authors of the
modification conceived to be the better, and
the course of improvement was continued through
periods at which all the rest of human thought
and action materially slackened its pace, and
repeatedly threatened to settle down into stag-

I confine myself in what follows to the pro-
gressive societies. With respect to them it may
be laid down that social necessities and social
opinion are always more or less in advance of
Law. We may come indefinitely near to the
closing of the gap between them, but it has a
perpetual tendency to reopen. Law is stable ;
the societies we are speaking of are progressive.
The greater or less happiness of a people depends
on the degree of promptitude with which the
gulf is narrowed.

A general proposition of some value may be
advanced with respect to the agencies by which
Law is brought into harmony with society.
These instrumentalities seem to me to be three
in number, Legal Fictions, Equity, and Legislation,,
Their historical order is that in which I have
placed them. Sometimes two of them will be
seen operating together, and there are legal
systems which have escaped the influence of
one or other of them. But I know of no instance
in which the order of their appearance has been
changed or inverted. The early history of one
of them, Equity, is universally obscure, and


hence it may be thought by some that certain
isolated statutes, reformatory of the civil law,
are older than any equitable jurisdiction. My
own belief is that remedial Equity is everywhere
older than remedial Legislation; but, should
this be not strictly true, it would only be necessary
to limit the proposition respecting their order
of sequence to the periods at which they exercised
a sustained and substantial influence in trans-
forming the original law.

I employ the word " fiction " in a sense con-
siderably wider than that in which English lawyers
are accustomed to use it, and with a meaning
much more extensive than that which belonged
to the Roman " fictiones." Fictio, in old Roman
law, is properly a term of pleading, and signifies
a false averment on the part of the plaintiff which
the defendant was not allowed to traverse ; such,
for example, as an averment that the plaintiff
was a Roman citizen, when in truth he was a
foreigner. The object of these "fictiones" was,
of course, to give jurisdiction, and they therefore
strongly resembled the allegations in the writs
of the English Queen's Bench and Exchequer,
by which those courts contrived to usurp the
jurisdiction of the Common Pleas : the allegation
that the defendant was in custody of the king's
marshal, or that the plaintiff was the king's
debtor, and could not pay his debt by reason
of the defendant's default. But now I employ
the expression "Legal Fiction" to signify any
assumption which conceals, or affects to conceal,
the fact that a rule ofjaw has undergone altera-
tion, its letter remmning^unchanged, its operation


being modified. The words, therefore, include
the instances of fictions which I have cited from
the English and Roman law, but they embrace
much more, for I should speak both of the English
Case-law and of the Roman Responsa Prudentium
as resting on fictions. Both these examples will
be examined presently. The fact is in both cases
that the law has been wholly changed ; the
fiction is that it remains what it always was.
It is not difficult to understand why fictions in
all their forms are particularly congenial to the
infancy of society. They satisfy the desire for
improvement, which is not quite wanting, at
the same time that they do not offend the super-
stitious disrelish for change which is always
present. At a particular stage of social progress
they are invaluable expedients for overcoming
the rigidity of law, and, indeed, without one of
them, the Fiction of Adoption which permits
the family tie to be artificially created, it is
difficult to understand how society would ever
have escaped from its swaddling-clothes, and
taken its first steps towards civilisation. We
must, therefore, not suffer ourselves to be affected
by the ridicule which Bentham pours on legal
fictions wherever he meets them. To revile them
as merely fraudulent is to betray ignorance of
their peculiar office in the historical development
of law. But at the same time it would be equally
foolish to agree with those theorists who, dis-
cerning that fictions have had their uses, argue
that they ought to be stereotyped in our system.
There are several Fictions still exercising powerful
influence on English jurisprudence which could


not be discarded without a severe shock to the
ideas, and considerable change in the language,
oi English practitioners ; but there can be no
doubt of the general truth that it is unworthy
of us to effect an admittedly beneficial object
by so rude a device as a legal fiction. I cannot
admit any anomaly to be innocent, which makes
the law either more difficult to understand or
harder to arrange in harmonious order. Now,
among other disadvantages, legal fictions are the
greatest of obstacles to symmetrical classification.
The rule of law remains sticking in the system,
but it is a mere shell. It has been long ago
undermined, and a new rule hides itself under
its cover. Hence there is at once a difficulty in
knowing whether the rule which is actually
operative should be classed in its true or in its
apparent place, and minds of different casts will
differ as to the branch of the alternative which
ought to be selected. If the English law is ever
to assume an orderly distribution, it will be
necessary to prune away the legal fictions which,
in spite of some recent legislative improvements,
are still abundant in it.

The next instrumentality by which the adapta-
tion of law to social wants is carried on I call
Equity, meaning by that word any body of rules
existing by the side of the original civil law,
founded on distinct principles and claiming in-
cidentally to supersede the civil law in virtue
of a superior sanctity inherent in those principles.
The Equity whether of the Roman Pnetors or of
the English Chancellors, differs from the Fictions
which in each case preceded it, in that the inter-


ference with law is open and avowed. On the
other hand, it differs from Legislation, the agent
of legal improvement which comes after it, in
that its claim to authority is grounded, not on
the prerogative of any external person or body,
not even on that of the magistrate who enunciates
it, but on the special nature of its principles, t6
which it is alleged that all law ought to conform.
The very conception of a set of principles, invested
with a higher sacredness than those of the original
law and demanding application independently
of the consent of any external body, belongs to
a much more advanced stage of thought than
that to which legal fictions originally suggested

Legislation, the enactments of a legislature
which, whether it take the form of an autocratic
prince or of a parliamentary assembly, is the
assumed organ of the entire society, is the last of
the ameliorating instrumentalities. It differs from
Legal Fictions just as Equity differs from them,
and it is also distinguished from Equity, as
deriving its authority from an external body or
person. Its obligatory force is independent of
its principles. The legislature, whatever be the
actual restraints imposed on it by public opinion,
is in theory empowered to impose what obliga-
tions it pleases on the members of the community.
There is nothing to prevent its legis]ating in the
wantonness of caprice. Legislation may be dic-
tated by equity, if that last word be used to
indicate some standard of right and wrong to
which its enactments happen to be adjusted ;
but then these enactments are indebted for their


binding force to the authority of the legislature
and not to that of the principles on which the
legislature acted ; and thus they differ from rules
of Equity, in the technical sense of the word,
which pretend to a paramount sacredness entitling
them at once to the recognition of the courts even
without the concurrence of prince or parliamentary
assembly. It is the more necessary to note these
differences, because a student of Bentham would
be apt to confound Fictions, Equity, and Statute
Law under the single head of Legislation. They
all, he would say, involve law-making ; they
differ only in respect of the machinery by which
the new law is produced. That is perfectly true,
and we must never forget it ; but it furnishes no
reason why we should deprive ourselves of so
convenient a term as Legislation in the special
sense. Legislation and Equity are disjoined in
the popular mind and in the minds of most
lawyers ; and it will never do to neglect the
distinction between them, however conventional,
when important practical consequences follow
from it.

It would be easy to select from almost any
regularly developed body of rules examples of
legal fictions, which at once betray their true
character to the modern observer. In the two
instances which I proceed to cons der, the nature
of the expedient employed is not so readily de-
tected. The first authors of these fictions did not
perhaps intend to innovate, certainly did not wish
to be suspected of innovating. There are, more-
over, and always have been, persons who refuse
to see any fiction in the process, and conventional


language bears out their refusal. No examples,
therefore, can be better calculated to illustrate the
wide diffusion of legal fictions, and the efficiency
with which they perform their twofold office of
transforming a system of laws and of concealing
the transformation.

We in England are well accustomed to the ex-
tension, modification, and improvement of law by a
machinery which, in theory, is incapable of altering
one jot or one line of existing jurisprudence. The
process by which this virtual legislation is effected
is not so much insensible as unacknowledged.
With respect to that great portion of our legal
system which is enshrined in cases and recorded
in law reports, we habitually employ a double
language, and entertain, as it would appear, a
double and inconsistent set of ideas. When a
group of facts comes before an English Court for
adjudication, the whole course of the discussion
between the judge and the advocates assumes that
no question is, or can be, raised which will call for
the application of any principles but old ones, or
of any distinctions but such as have long since
been allowed. It is taken absolutely for granted
that there is somewhere a rule of known law which
will cover the facts of the dispute now litigated,
and that, if such a rule be not discovered, it is
only that the necessary patience, knowledge, or
acumen is not forthcoming to detect it. Yet the
moment the judgment had been rendered and
reported, we slide unconsciously or unavowedly
into a new language and a new train of thought.
We now admit that the new decision has modified
the law. The rules applicable have, to use the


very inaccurate expression sometimes employed,
become more elastic. In fact they have been
changed. A clear addition has been made to the
precedents, and the canon of law elicited by com-
paring the precedents is not the same with that
which would have been obtained if the series of
cases had been curtailed by a single example.
The fact that the old rule has been repealed, and
that a new one has replaced it, eludes us, because
we are not in the habit of throwing into precise
language the legal formulas which we derive from
the precedents, so that a change in their tenor is
not easily detected unless it is violent and glaring.
I shall not now pause to consider at length the
causes which have led English lawyers to acquiesce
in these curious anomalies. Probably it will be
found that originally it was the received doctrine
that somewhere, in nubibus or in gremio magis-
traluum, there existed a complete, coherent, sym-
metrical body of English law, of an amplitude
sufficient to furnish principles which would apply
to any conceivable combination of circumstances.
The theory was at first much more thoroughly
believed in than it is now, and indeed it may have
had a better foundation. The judges of the
thirteenth century may have really had at their
command a mine of law unrevealed to the bar
and to the lay-public, for there is some reason for
suspecting that in secret they borrowed freely,
though not always wisely, from current compendia
of the Roman and Canon laws. But that store-
house was closed as soon as the points decided
at Westminster Hall became numerous enough
to supply a basis for a substantive system of


jurisprudence ; and now for centuries English
practitioners have so expressed themselves as to
convey the paradoxical proposition that, except
by Equity and Statute law, nothing has been
added to the basis since it was first constituted.
We do not admit that our tribunals legislate ; we
imply that they have never legislated ; and yet
we maintain that the rules of the English common
law, with some assistance from the Court of
Chancery and from Parliament, are coextensive
with the complicated interests of modern society.
A body of law bearing a very close and very
instructive resemblance to our case-law in those
particulars which I have noticed, was known to
the Romans under the name of the Responsa
Prudentium, the " answers of the learned in the
law." The form of these Responses varied a
good deal at different periods of the Roman
jurisprudence, but throughout its whole course
they consisted of explanatory glosses on authori-
tative written documents, and at first they were
exclusively collections of opinions interpretative
of the Twelve Tables. As with us, all legal
language adjusted itself to the assumption that
the text of the old Code remained unchanged.
There was the express rule. It overrode all
glosses and comments, and no one openly admitted
that any interpretation of it, however eminent
the interpreter, was safe from revision on appeal
to the venerable . texts. Yet in point of fact,
Books of Responses bearing the names of leading
jurisconsults obtained an authority at least equal
to that of our reported cases, and constantly
modified, extended, limited, or practically over-


ruled the provisions of the Decemviral law. The
authors of the new jurisprudence during the whole
progress of its formation professed the most
sedulous respect for the letter of the Code. They
were merely explaining it, deciphering it, bringing
out its full meaning ; but then, in the result, by
piecing texts together, by adjusting the law to
states of fact which actually presented themselves
and by speculating on its possible application to
others which might occur, by introducing prin-
ciples of interpretation derived from the exegesis
of other written documents which fell under their
observation, they educed a vast variety of canons
which had never been dreamed of by the compilers
of the Twelve Tables and which were in truth
rarely or never to be found there. All these
treatises of the jurisconsults claimed respect on
the ground of their assumed conformity with the
Code, but their comparative authority depended
on the reputation of the particular jurisconsults
who gave them to the world. Any name of uni-
versally acknowledged greatness clothed a Book
of Responses with a binding force hardly less than
that which belonged to enactments of the legisla-
ture ; and such a book in its turn constituted a
new foundation on which a further body of
jurisprudence might rest. The responses of the
early lawyers were not however published, in the
modern sense, by their author. They were re-
corded and edited by his pupils, and were not
therefore in all probability arranged according to
any scheme of classification. The part of the
students in these publications must be carefully
noted, because the service they rendered to their


teacher seems to have been generally repaid by
his sedulous attention to the pupils' education.
The educational treatises called Institutes or
Commentaries, which are a later fruit of the duty
then recognised, are among the most remarkable
features of the Roman system. It was apparently
in these Institutional works, and not in the books
intended for trained lawyers, that the jurisconsults
gave to the public their classifications and their
proposals for modifying and improving the tech-
nical phraseology.

In comparing the Roman Responsa Prudentium
with their nearest English counterpart, it must
be carefully borne in mind that the authority by
which this part of the Roman jurisprudence was
expounded was not the bench, but the bar. The
decision of a Roman tribunal, though conclusive
in the particular case, had no ulterior authority
except such as was given by the professional
repute of the magistrate who happened to be
in office for the time. Properly speaking, there
was no institution at Rome during the republic
analogous to the English Bench, the Chambers
of Imperial Germany, or the Parliaments of
Monarchical France. There were magistrates in-
deed, invested with momentous judicial functions
in their several departments, but the tenure of
the magistracies was but for a single year, so that
they are much less aptly compared to a permanent
judicature than to a cycle of offices briskly circu-
lating among the leaders of the bar. Much might
be said on the origin of a condition of things
which looks to us like a startling anomaly, but
which was in fact much more congenial than our


own system to the spirit of ancient societies,
tending, as they always did, to split into distinct
orders which, however exclusive themselves, toler-
ated no professional hierarchy above them.

It is remarkable that this system did not
produce certain effects which might on the whole
have been expected from it. It did not, for
example, popularise the Roman law, it did not,
as in some of the Greek republics, lessen the effort
of intellect required for the mastery of science,
although its diffusion and authoritative exposition
were opposed by no artificial barriers. On the
contrary, if it had not been for the operation
of a separate set of causes, there were strong
probabilities that the Roman jurisprudence would
have become as minute, technical, and difficult as
any system which has since prevailed. Again, a
consequence which might still more naturally have
been looked for, does not appear at any time to
have exhibited itself. The jurisconsults, until the
liberties of Rome were overthrown, formed a class
which was quite undefined and must have fluctu-
ated greatly in numbers ; nevertheless, there does
not seem to have existed a doubt as to the particu-
lar individuals whose opinion, in their generation,
was conclusive on the cases submitted to them.
The vivid pictures of a leading jurisconsult's daily
practice which abound in Latin literature the
clients from the country flocking to his ante-
chamber in the early morning, and the students
standing round with thedr note-books to record
the great lawyer's replies are seldom or never
identified at any given period with more than one
or two conspicuous names. Owing too to the



direct contact of the client and the advocate, the
Roman people itself seems to have been always
alive to the rise and fall of professional reputation,
and there is abundance of proof, more particularly
in the well-known oration of Cicero, "Pro Muraena,"
that the reverence of the commons for forensic suc-
cess was apt to be excessive rather than deficient*
We cannot doubt that the peculiarities which
have been noted in the instrumentality by which
the development of the Roman law was first
effected, were the source of its characteristic
excellence, its early wealth in principles. The
growth and exuberance of principle was fostered,
in part, by the competition among the expositors
of the law, an influence wholly unknown where
there exists a Bench, the depositaries intrusted
by king or commonwealth with the prerogative
of justice. But the chief agency, no doubt, was
the uncontrolled multiplication of cases for legal
decision. The state of facts which caused genuine
perplexity to a country client was not a whit
more entitled to form the basis of the juriscon-
sult's Response, or legal decision, than a set of
hypothetical circumstances propounded by an
ingenious pupil. All combinations of fact were
on precisely the same footing, whether they were
real or imaginary. It was nothing to the juris-
consult that his opinion was overruled for the
moment by the magistrate who adjudicated on
his client's case, unless that magistrate happened
to rank above him in legal knowledge or the
esteem of his profession. I do not, indeed, mean
it to be inferred that he would wholly omit to
consider his client's advantage, for the client was


in earlier times the great lawyer's constituent and
at a later period his paymaster, but the main road
to the rewards of ambition lay through the good
opinion of his order, and it is obvious that under
such a system as I have been describing this was
much more likely to be secured by viewing each
case as an illustration of a great principle, or an
exemplification of a broad rule, than by merely
shaping it for an insulated forensic triumph. It
is evident that powerful influence must have been
exercised by the want of any distinct check on
the suggestion or invention of possible questions.
Where the data can be multiplied at pleasure, the
facilities for evolving a general rule are immensely
increased. As the law is administered among
ourselves, the judge cannot travel out of the sets
of facts exhibited before him or before his pre-
decessors. Accordingly each group of circum-
stances which is adjudicated upon receives, to
employ a Gallicism, a sort of consecration. It
acquires certain qualities which distinguish it
from every other case genuine or hypothetical.
But at Rome, as I have attempted to explain,
there was nothing resembling a Bench or Chamber
of judges ; and therefore no combination of facts
possessed any particular value more than another.
When a difficulty came for opinion before the
jurisconsult, there was nothing to prevent a person
endowed with a nice perception of analogy from
at once proceeding to adduce and consider an
entire class of supposed questions with which a
particular feature connected it. Whatever were
the practical advice given to the client, the
responsum treasured up in the note-books of


listening pupils would doubtless contemplate the
circumstances as governed by a great principle, or
included in a sweeping rule. Nothing like this
has ever been possible among ourselves, and it
should be acknowledged that in many criticisms
passed on the English law the manner in which
it has been enunciated seems to have been lost
sight of. The hesitation of our courts in declaring
principles may be much more reasonably attributed
to the comparative scantiness of our precedents,
voluminous as they appear to him who is ac-
quainted with no other system, than to the temper
of our judges. It is true that in the wealth of
legal principle we are considerably poorer than
several modern European nations. But they, it
must be remembered, took the Roman jurispru-
dence for the foundation of their civil institutions.
They built the debris of the Roman law into their
walls ; but in the materials and workmanship of
the residue there is not much which distinguishes
it favourably from the structure erected by the
English judicature.

The period of Roman freedom was the period
during which the stamp of a distinctive character
was impressed on the Roman jurisprudence ; and
through all the earlier part of it, it was by the
Responses of the jurisconsults that the develop-
ment of the law was mainly carried on. But as
we approach the fall of the republic there are
signs that the Responses are assuming a form
which must have been fatal to their farther
expansion. They are becoming systematised and
reduced into compendia. Q. Mucius Scaevola, the
Pontifex, is said to have published a manual of


the entire Civil Law, and there are traces in the
writings of Cicero of growing disrelish for the old
methods, as compared with the more active in-
struments of legal innovation. Other agencies had
in fact by this time been brought to bear on the
law. The Edict, or annual proclamation of the
Praetor, had risen into credit as the principal
engine of law reform, and L. Cornelius Sylla, by
causing to be enacted the great group of statutes
called the Leges Cornelia, had shown what rapid
and speedy improvements can be effected by
direct legislation. The final blow to the Responses
was dealt by Augustus, who limited to a few
leading jurisconsults the right of giving binding
opinions on cases submitted to them, a change
which, though it brings us nearer the ideas of
the modern world, must obviously have altered
fundamentally the characteristics of the legal pro-
fession and the nature of its influence on Roman
law. At a later period another school of juriscon-
sults arose, the great lights of jurisprudence for all
time. But Ulpian and Paulus, Gaius and Papinian,
were not authors of Responses. Their works were
regular treatises on particular departments of the
law, more especially on the Praetor's Edict.

The Equity of the Romans and the Praetorian
Edict by which it was worked into their system,
will be considered in the next chapter. Of the
Statute Law it is only necessary to say that it
was scanty during the republic, but became very
voluminous under the empire. In the youth and
infancy of a nation it is a rare thing for the legis-
lature to be called into action for the general
reform of private law. The cry of the people


is not for change in the laws, which are usually
valued above their real worth, but solely for their
pure, complete, and easy administration ; and
recourse to the legislative body is generally directed
to the removal of some great abuse, or the decision
of some incurable quarrel between classes and
dynasties. There seems in the minds of the
Romans to have been some association between
the enactment of a large body of statutes and the
settlement of society after a great civil commotion.
Sylla signalised his reconstitution of the republic
by the Leges Corneliae ; Julius Csesar contemplated
vast additions to the Statute Law ; Augustus
caused to be passed the all-important group of
Leges Juliae ; and among later emperors the most
active promulgators of constitutions are princes
who, like Constantine, have the concerns of the
world to readjust. The true period of Roman
Statute Law does not begin till the establishment
of the empire. The enactments of the emperors,
clothed at first in the pretence of popular sanction,
but afterwards emanating undisguisedly from the
imperial prerogative, extend in increasing massive-
ness from the consolidation of Augustus's power
to the publication of the Code of Justinian. It
will be seen that even in the reign of the second
emperor a considerable approximation is made
to that condition of the law and that mode of
administering it with which we are all familiar.
A statute law and* a limited board of expositors
have arisen into being ; a permanent court of
appeal and a collection of approved commentaries
will very shortly be added ; and thus we are
brought close on the ideas of our own day.

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