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liament, and parliamentary Proceedings. 3. Precedents. 4. Resolutions of former times. 5. Some Reasons offered to maintain this side, and weaken the other.-In these, by their advice, he resolved not to pass from point to point; but, according to the time and occasion, to touch some parts summarily, and to insist chiefly upon one, viz. The Precedents for the parliamentary Proceedings. He agreed, that the great Charter, upon which the liberty of the free subjects of this kingdom is grounded, is in force; and that, in former times, occasions were often given to the subject to press it to be confirmed; and that the cominons did fitly and worthily to maintain the liberties and privileges left unto them by their ancestors.He did also acknowledge, That this charter did extend to the king, rather than the subject; and that the subsequent statutes, 6 in number, stand in force; but the difference and doubt rested in the interpretation and application of the statute: for the words of Magna Charta are general; that it did not restrain the king from imprisoning a subject; but with this clause, Nisi per legale judicium parium suorum, vel per legem terræ:' and how far lex terræ extends, is, and ever was the question. Of the subsequent statutes, some confirm Magna Charta in totidem verbis; and therefore decide not the question, but leave it as they found it; so that to ground any arguments on them will be but petitio principii; and the others concern not the question now in hand, but were made for redress of inconveniences happening to the subjects, by the suggestion or information of parties; but this he submitted to the house. In the court of king's bench the judges did not meddle with the statutes, but did ground them- Sir Edw. Coke began thus:-- Your lordships selves upon resolutions and precedents; which have well perceived how fairly, and with what he would now repeat, and leave the difference respect, we have dealt with you, and ever to both houses. We have directed the records shall. We brought up unto you what we had to be here; and if it shall seem good to you, resolved on; and not only that, but the cause we desire that we may read or open what is and grounds of our resolutions, and all our rein the Declaration of the commons touching cords; the like whereof was never done in parcach record; and then read the record itself, liament: and we are to maintain what we did. and open what we have to say therein. The The natural and the politic body have a great 1st Precedent is, That John Biddleston, a cler- resemblance and proportion and as the gyman, by a writ under the great seal, was natural body hath symptoms of good or evil committed to the Tower, with commandment health, so we hold it a good symptom for to keep him safely, donec aliter a nobis lia- us, that Mr. Attorney was so long and so bueritis in mandatis. From the Tower he was loth to come to it. My lords, we will break brought to the King's-bench, and committed to order rather than defer the business. This the marshal. And the lieutenant asked him, conference is between the two houses. Mr. If he had any other cause against him? who Attorney is no member of your house: he said, No; but the king's writ only: Et quia attends you; but his voice is with us: yet we videtur curia per breve prædict, quod non est are so willing to proceed, that we will take no sufficiens causa, &c.' ideo he was bailed.-To hold of threads: let him say what he can, we this he answered, 1st, That this writ bears date will allow him a voice here, where he ought in March, 16 Ed. 3. and commands to receive not to speak. We have delegatam potestatem, John Biddleston from the sherifs of London, tantum permissam, quantum commissant; and to whom he was formerly committed in the therefore, for all new matter of this conference, writ: and as there is neither general nor spe- we come with ears, not with tongues. For the cial cause, nor yet any mention upon what war-resolutions of the judges, we are glad of them; rant or command he was cominitted to the and we are confident never a judge in England sheriffs of London; so it is true, that dimittitur will be against what we have resolved. per manucaptionem: and thus far it seems to can say nothing to it; it is new matter; but ake for the other side. But, it appears that we will report it faithfully to our house.

this writ was not an original commitment; but a transferring and removing of the prisoner from one custody to another. 2dly, It appears he lay 2 years in the Tower, viz. from 16 till 18 Ed. 3, before he came to the King's-bench. 3dly, 'It appears, in another part of the same record, That the cause of cominitment was for suspicion of counterfeiting the great seal; and he was brought to the King's-bench for that cause: for being bailed, and at the day, coming in upon his bail, there came another writ to the justices, which Mr. Attorney read out of the record; which recited, That the king had caused him to be brought to the King's-bench, for suspicion of counterfeiting the great seal, quous-. que per quondam informationem plenius informemur. And because the informer came not, the writ commands the judges, that if he came not by quind. then adventuram ejus non expectare, but proceed according to law: so that, although in a record so antient, it is difficult to find out all material parts, yet by this writ, the cause of the commitment appears; and when the cause appears and is such whereupon the King's-bench may proceed, they must go on according to justice. It appears by this writ, that he was committed upon the suggestion of an informer; and observe the time; for it seems that about 5 Edw. 3. and forward, these informers began to be too frequent; and therefore care was taken to relieve the subject against those inconveniences; which, growing more and more, were after complained of in parliament'-Here Mr. Attorney staid, and after a little pause upon settling whether the lower house would answer particularly to cach Precedent, or take all together,

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Quintilian, a notable rhetorician, for so he was indeed, and taught the rules best, speaks of 'simulatio.' It is a figure of rhetoric; and, says he, simulatio procedit ut quod dicendo refutare non possimus id tanquam fastidiendo calcitremus.' Methinks Mr. Attorney has made use of this simulatio, and hath slighted the acts of parliament; and therefore we desire they may be read.'-Here being told by the lord-keeper, That the acts of parl. were well known, and had been all read in our house, he replied, I cannot tell, nescio quid energie habeat viva vox: alas! Litera occidit, spiritus autem vivificat. To slight these, is tanquam fastidiendo calcitrare:' and so pressed on that the acts of parl. might be read and opened. And thereupon began

by the commons, to prove their Resolutions, in the Case of John Biddleston, Pasch. 18 Edw 3. Rot. 33. Rex. To this Mr. Attorney ob jected. 1. That in the return of him into the court, it did not appear that this Biddleston was committed by the king's command: and 2. That in the record it did appear also, that he had been committed for suspicion of counter feiting the great seal; and so by consequenc was bailable in the law, in regard there appeare cause why he was committed. And he said That this part of the record, by which it ap peared he had been committed for this suspi cion, was not observed to the lords in the ar gument of the commons before used. And he shewed also that there were 3 several kinds o records, by which the full truth of every award or bailing, upon a Habeas Corpus, is known 1. The remembrance-roll, wherein the award is given. 2dly, The file of the writ, and the return. And Sdly, The scrute-roll, or scrute

the remembrance-roll of this case was to b found; and that if the other two were extant he doubted not but that it would appear als upon the return itself, that the cause of the commitment had been expressed.' And so ho concluded, That this proved not for the Reso lution of the commons, touching the manner of bail, where a prisoner was committed by the king's special command, without cause shewed

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Mr. Littleton. It is agreed by Mr. Attor ney, and resolved by the judges, that the acts of parl. are all in force; and that the statute of Magna Charta concerns the king as well as the subject; nay, the king rather than the sub-file, wherein the bail is entered; and that onl ject: the exposition makes all the matter; and chiefly of these words, legem terra; which if they bear not the exposition which we have given them, I would gladly have heard from Mr. Attorney another exposition. I will prove our exposition by reason: for if these words, legen terræ, should be extended to the general law of the land, then it should extend to villains, who, by the law of the land, may be imprisoned by their lords without any cause; but so cannot a freeman. But I need not insist upon reason, the exposition is so clear by the ensuing statutes.' And reading the words of the statute 25 Ed. 3. By this it appears, that what in Magna Charta is called lex terræ, in the statute of 28 Ed. 3. is called process of the law.' And where Mr. Attorney said the words were general, they are as express as any man can pen them in this age; and where he said, that the ensuing statutes extend to imprisonment, upon suggestion of parties, it is equal whether the king do it of himself, or by suggestion of others: but kings seldom do those things merely of themselves; but as things proceeding from some man's suggestion.' Then reading the statute 5 Edw. 3. he said, 'None would doubt but attaching in that statute, was attaching the body.'. And reading the statute 28 Ed. 3. without any special inference upon it, he read 36 Ed. 3. Rot. Parl. No. 9.

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The LORD PRESIDENT'S REPORT of the Second Part of the CONFERENCE. "Mr. Littleton read divers of the statutes, which he cited in the former conference, which was reported here on the 9th of April, and made the same inferences therefrom; and Mr. Attorney delivered another Answer unto the same than what he had formerly made; which he left to the judgment of the lords.-Then Mr. Attorney made his objections to the precedents, alledged by Mr. Selden on behalf of the commons; and Mr. Selden gave several answers unto the same in this manner :

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thus: 1st, That it was plain that Biddleston To these Objections Mr. Selden replied was committed by the king's express con mand; for so are the very words in the wri to the constable of the Tower, quod eum teneri & custodiri facias,' &c. than which no thing can more fully express a commitment by the king's command. 2dly, Howsoever it be true, that in the latter part of the record i does appear, That Biddleston had been committed for the suspicion of treason; yet, if the times of the proceedings, expressed in the rethe objection was of no force: for this one cord, were observed, it would be plain, that ground, both in this case and all the rest, is infallible, and never to be doubted of in the law, that the justices of every court adjudge of the force or strength of a return out of the body of itself only, and according as it therein appears to them. Now in Easter Term, 18 Ed. 3. he was returned and brought before them as committed only by that writ, wherein no cause is expressed; and the lieutenant or the him into the court, says, that he had no other constable of the Tower of London, that brought warrant to detain him, nisi breve prædictum, wherein there was no mention of any cause; and the court, thereupon, adjudged, that breve prædictum, or that special command was not sufficient cause to detain him in prison: and thereupon he is, by judgment of the court in Easter Term, let to main-prize. But that part of the record, wherein it appears that he had indeed been committed for suspicion of treason, is of Trinity Term following · "when the king.

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judges that they should discharge his main-mitted him to be of less moment than felony prize, because no man prosecuted him. And and therefore bailed him. For he objected, tha at that time it appears, but not before, that even the commons themselves in some argument he had been in for suspicion of treason; so used by them, touching the interpretation of the that he was returned to stand committed by Statute of Westminster the First, ch. 15, abou the king's special command only, without cause this point, had confirmed that, in enumeration shewed in Easter Term; and then, by judg- of particulars, those of greatest nature wer ment of the court, let to main-prize; which, to first mentioned; and it was supposed, tha the present purpose, is but the same with bail, such as followed are, usually, of less nature o though otherwise it differ. And, in the term moment.--Mr. Selden replied to the first Ob following, upon another occasion, the court jection, That the addition of the certifying knew that he had been committed for suspicion the king's command by Peck, altered not the of treason; which hath no relation at all to case. 1st. Because the sheriffs, in their re the letting of him to mainprize, nor to the turn, took notice of the command, as what judgment of the court, before given; when they were assured of; and then, howsoever i they did not, nor could not possibly know any came to them, it was of equal force, as if i cause for which the king had committed him." had been mentioned without reference. 2 abeas Corpus, And Mr. Selden said, in behalf of the com- That as divers patents passed the great sea mons, That they had not, indeed, in their by writ of privy seal, and are subscribed argument, expressly used this lattér part of breve de privato sigillo, so divers per ipsum the record of Biddleston's case, because it be- regem,' and are so subscribed: and ofter ing only of Trinity Term following, it could times, in the roll of former times, to the words not concern the reason of an award given by per ipsum regem are added nunciat A. B. Sc the court in Easter Term next before. Yet, that the king's command generally, and the notwithstanding, that they had most faithfully, king's cominand related or certified by such a at the time of their argument, delivered in to man to this purpose, is of like nature. 3. In the lords a perfect copy, at large, of the whole the late great case of the Habeas Corpus, record of this case: as they had done also of where the return of the commitment was per all other precedents whatsoever cited by them. speciale mandatum domini regis, mihi signifiAnd, as touching those 3 kinds of record, Mr. catum per dominos de privato consilio;" the Selden answered, that it was true that the court of King's-bench did agree that it was the scrute and return of this case of Biddleston was same, and of like force as if mihi significatum, not to be found; but that it did not lessen the &c. had not followed, and that those words weight of the precedent, because always in the were void. According whereunto, here also award or judginent drawn up in the remem- per mandatum domini regis nunciat. per R. brance roll, the cause, whatsoever it be, when Peck,' was to be taken as if'nunciat. per R. any is shewed upon the return, is always ex- Peck, had been wholly omitted, and void.pressed as it appears clearly by the constant Likewise, and in truth, in that late case, this entries of the court of King's-bench. So that if case of Parker was cited both at the bar and any cause had appeared to the court, it must bench; and at the bench, it was interpreted have appeared plainly in that part of the roll by the judges no otherwise than if it had been which belongs to Easter Term, wherein the judg- only per mandatum domini regis' in this place ment was given. But the return of the com- of it.-But the objection made there was o mitment, by the king's command, without cause another kind; as now delivered in the first shewed; and the judgment of court, that the argument made out of the precedents, in be prisoner was to be let to mainprize, appears half of the commons. Then for the second therein only therefore, notwithstanding any touching the course of enumeration of the objection made by Mr. Attorney, Mr. Selden causes in the return; Mr. Selden said, That affirmed this case to be a clear proof, amongst howsoever in some acts of parl. and elsewhere many others, touching that resolution of the in the solemn expressions used in the law commons." things of greater nature precede and the less follow; yet in this case the contrary was most plain; for in the return, it appears that there were 3 causes of detaining the prisoner; surety of the peace, suspicion of felony, and the king's command: and surety of the peace is firs mentioned, which is plainly less than felony Therefore it is as plain (if any force of argument be here to be taken from this enumera tion) that the contrary to that, which Mr. At torney inferred, is to be concluded: that is as felony is a greater cause than surety of the peace, so the matter, whereupon the king' command was grounded, was greater than fe lony: but, in truth, this kind of argumen holds neither way here; and whatsoever the

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"To the Second, which was Parker's case in 22 Hen. 8. rot. 37, Mr. Attorney's Objections were, 1. That it is true, that he was returned to be committed per mandatum domini regis; but that it appeared that this command was certified to the sheriffs of London by one Peck. And that in regard the command came no otherwise, the return was held insufficient: and therefore he was bailed. 2. That it appears also in the record, that he was committed pro suspicione feloniæ, ac per mandatum domini regis; so that in regard that, in the expression of the causes of this cominitinent, suspicion of felony precedes the command of the king, therefore, it must be intended that

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impossible for the court to know; and it might also have been of very high moment, in a matter of state, and yet of far less nature than felony all which shews this precedent hath its full force also, according as it was first used in argument by the commons.

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"To the Third, which is Brink's case, 35 Hlen. 8. rot. 33. the objection by Mr. Attorney was, That there was a cause expressed pro suspicione feloniæ,' and though pro aliis causis illos moventibus' were added in the return, yet because, in the course of enumeration, the general name of alia,' coming after particulars, includes things of less nature than the particular doth: therefore, in this case, suspicion of felony being the first, the other causes, afterwards generally mentioned, must be intended of a less nature; for which the prisoner was bailable; because he was bailable for the greater, which was suspicion of felony.' Hereto Mr. Selden replied, That the argument of enumeration in these cases is of no moment, as is next before shewed; and that, although it were of any moment, yet the alia causa,' though less than felony, might be of very great consequence in matter of state, which is pretended, usually, upon general returns of command without cause shewed: and it is most plain that the court could not know the reasons why the prisoner here was committed; and yet they bailed him, without looking further after any unknown thing, under that title of matters of state, which as well might have been in this case as in any other whatsoever.[The Objections made by Mr. Attorney against the 4th, 5th, 6th, and 7th Precedents, alledged by the House of Commons in favour of their Resolutions, with Mr. Selden's Answers thereto, are omitted in the Journals.]

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"To the Eighth, which is Browning's Case, 20 Eliz. rot. 72, it was said by Mr. Attorney, That he was hailed by a letter from the lords of the council,directed to the judges of the court: but being asked for that letter or any testimony of it, he could produce none at all: but said, he thought the testimony of it was burnt among many other things of the council-table, at the burning of the banqueting house. To the Ninth, being Harcourt's Case, 40 Eliz. rot. 62, the self-same objection was made by him, but no warrant was shewed. To the Tenth, which is Catesby's Case in Hillary vacation, 43 Eliz. Mr. Attorney said, "That it was by direction of a privy scal from the queen; and to that purpose, he shewed the privy seal of 43 Eliz. which is at large amongst the transcripts of the records, concerning bails taken in cases where the king or lords of the council assented.'-But Mr. Selden replied, That the privy seal was made only for some particular gentlemen mentioned in it, and for none other, as indeed appears just; and then Mr. S. said, that it was likely that Catesby here had a privy seal in his behalf, because those others had so.

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said, 'The lords of the council sent letters to the court of the King's-bench to bail him; and he produced a letter, which could not be found when the arguments were made at the first con ference.'-To this Mr. Selden replied, 'That the letter was of no moment, being only a direction to the chief justice, and no matter of record, nor any way concerning the rest of the judges; and, besides, either the prisoner was bailable by law, or not bailable; if bailable by the law, then he was to be bailed without any such letter; if not bailable by the law, then plainly the judges could not have bailed him upon the letter without breach of their oath; which is, that they are to do justice, according to the law, without having respect to any command whatsoever. So that the letter in this case, or the like in any other case, is, for point of law, to no purpose, nor hath any weight at all, by way of objection, against what the record and judgment of the court shew us."

"To the Twelfth and last of these, which is sir Tho. Mounson's case, 14 Jac. rot. 147. the same objection was made over again by him, which was moved and answered in the argument at the first Conference; and that one ground which is infallible, that the judgment upon a return is to be made out only of what appears in the body of the return itself, was again insisted upon by Mr. Selden, in this case; as i was also in most of the rest.

"After Mr. Attorney's Objections to these 12 Precedents, and the Replies given to those objections, Mr. Attorney came next to those, where the assent of the king or the privy-coun cil appears to have been given to an enlargement: and he made the same kind of objections as are moved and answered before: and, for so much as concerns letters of assent or direc tion; the same was here said again, by way of reply to him as before, touching the letter in Beckwith's case."

"The Earl of HERTFORD'S REPORT of the

Third Part of the CONFERENCE. "After Mr. Attorney had made his Objec tions, and the gentlemen of the commons house their Answer, to what had been said touching the 12 Precedents, brought all for express Lestimonies, for the maintenance of the Resol tion of the commons; and after the gentlemen of the commous had given their Answer to that which was objected, out of such precedents as shew some assent of the king's attorney, or o the lords of the council, to the bailing of prisoners committed by such special command: Mr. Attorney came to urge the 8 precedents for the other side against that resolution; which 8 were mentioned, and copies of them given in at the first conference.

"Of these 8, the first four were urged by Mr. Attorney, as being of one kind; the difference of them being only such, that saving the names of the persons and prisons, they are but one and the self-same. The force of these 4 he "To the Eleventh of these, which is Beck-objected thus: That Everard, for the purwith's Case, 12 Jac. rot. 153, Mr. Attorney pose in the first of them, which is 5 Hen. 7.

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should be entered: and that mistake being so rectified and understood, he conceived that it was a direct precedent against the Resolution of the commons.'-To this Mr. Selden answered, That there was no doubt indeed but that a mistake was in the entry by the clerk; but that the mistake was quite of another nature: the addition of these words, hospitii domini regis' was the mistake; and the entry should have been, ‘Qui committitur marescallo,' &c. only: that is, he was committed to the marshal · of the King's-bench. And so indeed the force of this precedent should be but just the same with the first 4. But that the ignorance of the clerk that entered it, and knew not how to distinguish between the marshal of the king's houshold, and the marshal of the King's-bench, was the cause of the addition of those words, hospitii domini regis.'-And to confirm fully this kind of interpretation of that precedent, and of the mistake in it, Mr. Selden observed, 'That there is, in the margin of the roll, an infallible character that justifies as much; for, by the course of that court, whensoever a prisoner is committed to the marshal of the King's-bench, and not remanded, the word marescallo is written by Ma and r turned up; and that it is never written there, but when the meaning and sense of the entry is, that the prisoner is committed to the prison of the same court.-Now, in this case, in the margin, Ma and the r turned up is likewise written; which most clearly shews, that the truth of the case was, that this Page was committed to the marshal of the King's bench, and not remanded; for if he had been remanded, neither could the entry have been committitur, nor should the margin of the roll have had marescallo written in it."

PARL. HISTORY, 4 CHARLES I. rot. 18. Cherry, in the 2nd of them, which is 8 Hen. 7. rot. 12. Burton, in the 3rd of them, which is 9 Hen. 7. rot. 14. and Urswick, in the 4th of them, which is 19 Hen. 7. rot. 23. were returned into the King's-bench upon several writs of Habeas Corpus, to have been committed and detained in the several prisons whence they came, per mandatum domini regis; and that, upon that return, they were committed to the marshal of the King's-bench: and that however it hath been objected against these 4 precedents, that this kind of commitment, by the course of that court, was always done before the bailing of the prisoners, yet that it did not appear that they were bailed.-Mr. Selden's Answer to this objection was, That by the constant course of the King's-bench, whosoever came by Habeas Corpus, or other wise upon any writ, into that court, cannot be bailed until he be first committed to the marshal of that court; and that thence it was that all these 4 were committed to the marshal, as appears by the entry, qui committitur marescallo,' &c. which is the usual entry in such a case; and that all the clerks of that court acknowledge this course of entry to be most constant and perpetual: so that all the inference that can be made out of these 4 is but this, that 4 prisoners being brought from several prisons, by Habeas Corpus, into the King's-bench, and returned to stand committed per mandatum domini regis,' were so far from being remanded by the law; that in all these 4 cases, they were first taken from the several prisons, wherein they had been detained by such a general command; which could not have been, if they had not been adjudged in every of these cases to have been bailable by the court: and that this commitment of them to the marshal of the "To the sixth of these 8 precedents, being King's-bench, was the first step towards the the case of Cæsar, in 8 Jac. rot. 99. Mr. bailing of them, as in all other cases: but that Attorney objected thus: That Cæsar, being it appears not, that either they ever demanded committed per mandatum domini regis' to the to be bailed, or that they were able to find suf- Marshalsea of the houshold, was returned ficient bail: and if they did not the one, nor upon Habeas Corpus to be so committed, and could do the other, it might follow indeed, that therefore detained in prison; and therefore they were not bailed; but this commitment to the entry is, qui remittitur prisonæ marescalli the King's-bench, being the first step to the prædict;' by which it appears clearly, that he bailing of them, (as by the constant course it was remanded to the same prison from whence is) shews most plainly that they were bailable he came.' To this Mr. Selden answered, ‘The by the law; which is the only thing in question." usual entry of a remittitur, when it is to show "To the 5th of these 8 beingPage's Case, in that the court, by way of judgment or award, 7 Hen. 8. rot. 23. Mr. Attorney objected thus: upon resolution or debate, remanded the 'That Page was committed to the marshal of prisoner, is remittitur quousque,' &c. which is the houshold 'per mandatum domini regis, ibi-remittitur quousque secundum legem deliberadem salvo custodiendo, &c. qui committitur marescallo hospiti domini regis;' by which it appears, as he said, that the court remanded him to the prison of the Marshalsea of the houshold. And he said, 'That whereas it had been objected at the first conference, that there was some mistake in the entry, he said, he conceived indeed there was a mistake; and that the mistake was, that the clerk had entered committitur' for 'remittitur;' and that it should | have been, Qui remittitur marescallo hospitii domini regis; for whenever they remand the

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tus fuerit:' But when they advise, or give day to the keeper of the prison to amend his return or the like, then the entry is only remittitur generally, or remittitur prisonæ prædictæ. Though it was indeed affirmed by Keeling, a clerk of experience in that court, that the entry of remittitur' generally, or remittitur prisonæ prædictæ,' was indifferently used for the same, that is remittitur quousque, &c.' yet it was expressly shewed by Mr. Selden, that there was sometimes a difference, and that so it might well be in this case :

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