A second cause lies with Oxford herself in her own examinations. Not

only do they cramp the teacher, practically debarring him from some

topics; but they are so arranged as to prevent the Law School from

receiving, with some few exceptions, men of the first intellectual rank.

The ablest and best prepared of the students naturally, and rightly,

enter the classical school, and find themselves obliged, when they have

obtained their degree in it at the age of twenty-three, to quit the

University for the work of life. Do not suppose that I for a moment

desire to draw such men away from the classical school. No one who has

himself passed through the training of that school will doubt its

superior value to even the best-arranged Law School, as a part of the

education needed to make a good scholar, a good citizen, and a good

Christian. What we want is such a revision of our arrangements as will

bring men to the University somewhat younger, and will enable those who

have obtained honours in the school of Literae Humaniores, and intend to

follow the legal profession, to pass into the Law School when they have

taken their B.A. classical honours, and devote at least a year (though

in the Law Schools of America two years at least are thought needful) to

professional studies. At present Oxford is in the absurd position of

practically excluding from the legal instruction which the University

provides the most promising of her students, the very men who are best

fitted to turn it to account in their subsequent career. They spend at

school a year which they ought to spend at college, and they spin out

their general studies so long that they are unable to obtain that

scientific training in the future work of their life which the

University has been at such pains to set before them. To find time and

make provision in our curriculum for professional as well as general

literary studies was one of the chief problems which the Commissioners

of 1878-81 ought to have dealt with. Their failure throws back upon the

University herself the duty of reform. Other, though less material,

causes may be found in the undue prominence which examinations have been

suffered to take in the system, and in the very unsatisfactory relations

between the teaching provided by the University and that which the

Colleges supply, relations which involve much overlapping and a serious

waste of teaching power.

I need not pursue this topic into its details. Let it suffice to remark

that it is not merely for the sake of the University that one would

desire to see her influence upon legal studies extended. Over and above

that general liberal education which it is her main business to give,

and on which neither law nor any other special study must be suffered to

infringe, it is her duty to handle professional studies in a wide and

philosophic spirit, to raise them above mere gainful arts into the

domain of science, to draw to herself the ablest of those who are

entering these professions, the men from whom each profession receives

its tone and temper. You all know how much the practical sciences, such

as medicine, chemistry, and engineering, have gained by being closely

associated with the pursuit of abstract science. No less true is it that

men who follow these occupations, and those who devote themselves to the

bar or to the church, profit by their association with literary and

scientific culture and its central home here, feeling themselves members

of a great learned corporation, and carrying away with them the

influence of the ideals it has taught them to cherish. It is upon the

clergy that this influence has hitherto told most; nor has anything done

more to keep the clergy of the Church of England from becoming a caste

and to stimulate their activity in those fields of philosophic and

historical research wherein they have won so much distinction. One would

like to see the University lay the same hold on the other great

professions likewise.

This, however, is only one of the points in which observers who have

watched and studied Oxford from without as well as from within are

disposed to think that she does not fully comprehend, does not at any

rate fully use, her unrivalled opportunities. I touch upon a delicate

point. Yet as Homer occasionally invests a dying warrior with prophetic

gifts, one who is on the eve of departure may be permitted to give

expression to some of the aspirations that have long filled his mind

when he has thought of what Oxford might achieve. She seems at present

to be too exclusively occupied not only with the giving of a general

liberal education (to the disparagement of professional studies), but

also with her regular curriculum and those who follow it, to the neglect

of those others, now comparatively few, but capable of almost indefinite

increase, who desire not so much to follow a regular course or secure a

degree as to obtain special training in some department of learning.

Have we not, in our English love of competition and our tendency to

reduce everything to a palpable concrete result, allowed the examination

system to grow too powerful, till it has become the master instead of

the servant of teaching and has distracted our attention from the

primary duty of a University? It is not any revolutionary change one

would desire to see. Such changes are seldom either easy or salutary;

while as regards the college system, I find something to regret in those

inroads upon the social life and corporate character of the colleges for

which the last Commission is responsible. The reform chiefly needed is a

reform that would neither injure the Colleges nor affect the character

of the University as a seat of general liberal education. Rather let us

return to the older conception of a University as a place to which every

one who desired instruction might come, knowing that as Oxford took all

knowledge for her province she would provide him with whatever

instruction he required. The abundance and the cheapness of literature

have not diminished, perhaps they have even stimulated, the demand for

the best oral teaching, while the recent establishment of so many

prosperous colleges in the great towns, the spread of University

Extension lectures, the growth of Science schools, have immensely

increased the number of young men who would come hither for a year or

more to obtain such teaching were they sure of finding it. What is the

present position? There are professors, many of whom, eminent as they

are, cannot secure proper classes, because the undergraduates are

occupied, under the guidance of the college teachers, in preparing for

degree examinations. For the teaching of some important branches,

especially in natural and in economic science, no adequate staff is

provided. England has been outstripped not only by Germany but also by

the United States, in the provision of what the Americans call

Post-Graduate courses, a provision which even the present poverty of the

University need not hinder her from making, were but a reasonable system

of fees introduced and revenues husbanded that are now unprofitably

spent. Both the new University teachers who might be created and the

present professors to whom the existing system refuses hearers would be

only too happy to give those courses, if the students could be found and

the requisite arrangements made. The men who would attend the courses

are to be found, some of them within, many more without the University.

Those without do not come because the courses have not been offered: and

to provide for both sets, existing arrangements must be remodelled, for

these contemplate only the normal undergraduate who arrives at nineteen,

is examined, and departs at twenty-two or twenty-three, and take no

account of those who desire neither examinations nor degrees, but simply

to perfect themselves in some department of science or learning. Were

such courses offered, and were those antiquated arrangements altered,

you might soon expect a sensible afflux of students, not from England

only, but from far beyond the bounds of England.

Perhaps those who dwell in Oxford have scarcely yet realized the

magnificent position this University holds, as not only the oldest and

the most externally beautiful and sumptuous place of education in the

English-speaking world, but as a spot whose name and fame exert a

wonderful power over the imagination of the English peoples beyond the

sea, many of whose youth would gladly flock hither were they encouraged

to do so by arrangements suited to their needs. For those among the

studious youth of the United States and Canada who desire to follow out

their special studies, I can safely say from what I have seen of Canada

and the United States that did Oxford and Cambridge provide what the

Universities of Germany provide, and were it as easy to enter here and

choose the subject one seeks to study as it is in the Universities of

Germany, it is to Oxford and Cambridge rather than to Germany that most

of them would resort: nor could the value be overestimated of such a tie

as their membership here would create between the ancient mother and the

scattered children, soon to be stronger than their mother, but still

looking to her as the hallowed well-spring of their life.

It is always sad to part from work with which the best years of one’s

life have been largely occupied: and to me this common regret is

deepened by the associations, full of antique dignity, of the office I

am resigning and by the nature of the work which has been a source of

unfailing pleasure. And my regret at parting is the keener because I

part from the place where I have known so many of those brilliant

figures whom the last twenty years have taken from us, one of them

happily still in the world, though long since lost to the University

which his splendid powers adorned,—I mean Mr. Goldwin Smith,—the rest

now living only in our recollection. Vividly there come back to me as I

stand by the open gate, the kindly wisdom of the late President of

Corpus Christi[254], most loveable of men; the luminous and fertile

intellect of Sir Henry Maine[255]; the masculine force and high sense of

public duty of Thomas Green[256]; the penetration and learning, not more

wide than exact, of Mark Pattison[257]; the fine taste and golden lips

of Henry Liddon; the warm heart and vehement discourse and noble love of

truth of Edward Freeman[258]; the fire, the courage, the eagerness, the

zeal in all good causes of one whose university lectures and sermons

were so powerful a stimulus to many of us in our undergraduate days,

Arthur Stanley[259]. These men had some sharp contests in their lives,

but they are all alike enshrined in our memory as men of whom the Oxford

of those days may well be proud.

-----

Footnote 254:

Dr. John Matthias Wilson, formerly Professor of Moral Philosophy.

Footnote 255:

Formerly Corpus Professor of Jurisprudence.

Footnote 256:

Formerly Professor of Moral Philosophy.

Footnote 257:

Formerly Rector of Lincoln College.

Footnote 258:

Formerly Regius Professor of Modern History.

Footnote 259:

Formerly Regius Professor of Ecclesiastical History, afterwards Dean

of Westminster.

-----

Nor must a word of grateful farewell be omitted to those colleagues in

the Faculty of Law—among whom I will venture to reckon the Warden of All

Souls—whose thoughts and plans it has been a constant pleasure to share,

and with whom I have lived these many years in a friendship which no

cloud of personal disagreement, nor any divergence of political

opinions, has ever for a moment darkened. With the regret of parting I

carry away the delightful recollection of those years, and a sense which

time will not diminish of the honour it has been to be permitted so long

to serve this great University, the oldest and most venerated of the

dwellings of learning in Britain, dear to us not only because our

brightest years were spent among her towers and groves, but still more

because in her, as now in maturer life we scan a sometimes troubled

horizon to watch for signs of storm, we see an institution which has

stood unshaken while dynasties have fallen and constitutions have been

changed, and which still and always, placed above the shock of party

conflicts and renewing her youth in fresh activities from age to age,

embodies in visible and stately form the unbroken continuity of the

intellectual life of our country, and still commands, as fully as ever

in the past, the loving devotion of her children. [Blank Page]

INDEX

Abolitionists, in America, i. 414.

Aborigines, in Australia, i. 549.

Achaean League, i. 204.

Adoption, by Indian princes, i. 37;

in Indian law, i. 124;

by Roman emperors, ii. 482.

Adultery, a crime in Indian Penal Code, i. 126;

in Roman law, ii. 403.

Aeschylus, quoted, i. 167.

Afghanistan, i. 20.

Agricola, i. 15; ii. 405.

Alabama case, i. 416.

Alarich II, laws of, ii. 356, 483.

Algeria, i. 293.

Alsace, annexation of, i. 305.

Althing, or general assembly, in Iceland, i. 322-332, 347, 354.

Althusius, on sovereignty, ii. 85.

Amendment of constitution, i. 151, 205-217;

in Australia, i. 523-525.

America. _See_ United States.

_American Commonwealth_, referred to, i. 201, 211, 377; ii. 41.

Analytic school of jurisprudence, ii. 178-184.

Anarchism, ii. 28, 170.

Areopagus, i. 92.

Argentina, constitution of, i. 212, 253.

Aristocracy and flexible constitutions, i. 178-185.

Aristotle, i. 155, 430; ii. 2, 125, 317, 484.

Armenia, i. 20.

Army of Rome and India, i. 17, 18, 45.

Asiatic peoples, ii. 16-18.

Augustus, ii. 26, 61, 67, 68, 257, 289, 404, 405.

Austin criticized, ii. 89-97, 127, 180-184.

Australia: constitution of the Commonwealth, i. 468-553;

movement for federation, 471-482;

conditions favouring federation, 483-489;

character of federation, 489-491;

distribution of powers between Commonwealth and States, 491-494;

position of States under constitution, 494-498;

differences from United States and Canada, 498-501;

few restrictions on powers of Commonwealth, 501-504;

the legislature, 504-507;

the executive, 508;

the judiciary, 508-512;

dependence of executive upon legislature, 513-516;

provisions against deadlocks, 516-518;

relations of the two Houses, 518-521;

miscellaneous provisions, 521-523;

amendment of constitution, 523-525;

relations of Commonwealth to British crown, 525, 526;

comparison with United States and Canada, 527-530;

general observations, 531-535;

democratic character, 535-539;

political parties, 539-541;

future political issues, 542-546;

possible entrance of new States, 547-551;

future relations to Britain, 551-553.

Austro-Hungary, constitution of, i. 203, 284, 470; ii. 91, 92;

divorce in, ii. 450, 451.

Bacon, i. 261; ii. 96, 480.

Baker, Newton D., ii. 446.

Banns, publication of, ii. 417.

_Basilica_, of Leo, ii. 341, 378.

Belgium, divorce in, ii. 450, 451.

Bentham, criticized, ii. 3, 44-48, 88-97, 127, 179-184.

Bernier, on Mogul empire, i. 10.

Betrothal, in Roman law, ii. 393.

Beyrut, law school of, ii. 264, 320.

Bills, in House of Commons, ii. 325, 499.

Bishops, in Iceland, i. 327.

Bismarck, ii. 25.

Blackstone, i. 118; ii. 77, 166, 181, 265, 427, 430, 491.

Blood feuds, i. 321; ii. 212.

Bodin, on sovereignty, ii. 84, 85.

Bologna, law school of, i. 105; ii. 219, 231.

Bosnia, ii. 102.

Boss system in America, i. 417; ii. 30.

Bowen, Lord, ii. 199, 266.

Bracton, ii. 261, 332.

Brand, President, i. 463.

Breach of promise, action for, ii. 394.

Brehon law, i. 111; ii. 188.

Bulgaria, constitution of, i. 210, 211; ii. 102.

Cabinet government, in England, i. 177;

under the Australian constitution, i. 513-516.

Cairns, Lord, ii. 199, 266.

Cairo, university of, ii. 219-231.

Calhoun, i. 395; ii. 105.

Canada, constitution, i. 197, 198, 203;

compared with Australian, i. 470, 478, 488, 492, 495, 497, 498-501,

527-530;

law of divorce, ii. 443.

Canning, Lord, i. 37.

Canon Law, growth of, i. 105, 106; ii. 245;

regulation of marriage and divorce by, ii. 414, 416-420, 433-435.

Cape Colony, i. 432.

Capital, of United States, i. 406;

of Australian Commonwealth, i. 523.

Caracalla, edict of, i. 48, 99; ii. 147, 354.

Case law, compared with praetorian edict, ii. 281-293.

Caste, i. 68.

Catullus, i. 27, 53; ii. 393.

Caucus, the, i. 177.

Celibacy, discouragement of, at Rome, ii. 401, 409;

of clergy, ii. 414.

Centripetal and centrifugal forces, their action on political

constitutions, i. 255-311;

interest and sympathy, 263-265;

race and religion, 265-267;

how constitutions may utilize centripetal forces, 271-281;

and how modify centrifugal forces, 281-295;

illustrations from United States, 295-298;

probable results in the future, 300-311;

effect of conquest and family succession, 303-307.

Chancellor, the Lord, as builder of equity, ii. 164-166;

as law-maker, ii. 271, 279-281.

Character, of conquering races, i. 59-61.

Chartism, i. 175, 238.

Chastisement of wife by husband, ii. 426.

Christianity, unifying influence of, i. 3;

persecution of, i. 53;

in India, i. 69;

introduction into Iceland, i. 350, 351;

as affecting growth of law, ii. 242-246, 352;

influence on Roman law of divorce, ii. 406-409.

Church, identified with State, ii. 240.

Cicero, against Verres, i. 27, 89, 94; ii. 275;

on the Law of Nature, ii. 133-138, 173;

on the Twelve Tables, ii. 347, 494;

divorced his wife, ii. 404.

Citizenship under Roman empire, i. 48, 90.

Clarendon, Constitutions of, ii. 360.

Claudian, quoted, i. 75.

Claudius, Emperor, ii. 411.

Climate, effect of, on Roman and Indian empires, i. 63, 64.

Clive, i. 9, 13, 28, 60.

_Codicilli_, ii. 289.

Codification, of Roman law, i. 104;

of French law, i. 107, 388; ii. 376;

of German law, i. 108; ii. 377, 479;

of Indian law, i. 121-133;

of Icelandic law, i. 341-343.

_Coemptio_, Roman marriage by, ii. 388-390.

Coke, Lord, ii. 199, 260.

Collectivism, i. 309.

Colonies, of England, i. 4.

Colour of Race, effect of, in Roman and Indian empires, i. 64-67,

291-294.

_Comitia_, ii. 297-303.

Commands, laws as, i. 334; ii. 3, 44-48, 194.

Committee stage, in English legislation, ii. 328.

Commonwealth. _See_ Australia.

Comparative method of jurisprudence, ii. 170, 186-190.

Concubinage, ii. 413.

_Confarreatio_, Roman marriage by, ii. 388-390.

Congress, as a legislative body, ii. 323-326.

Conquest, formation of empire by, i. 8-16;

extension of Roman law by, i. 88; ii. 78;

effect of, as a centripetal force, i. 303-307.

_Consistorium_, ii. 314.

Consolidation: of law in India, i. 131;

of law in America, ii. 326;

of English law, ii. 331, 499.

Constantinople, law school of, ii. 264, 320.

_Constituta_, of Roman emperors, i. 99; ii. 311.

Constitutions: of Rome and England, i. 145-150;

proposed new classification, 150-159;

origin of flexible, 159-162;

strength and weakness of flexible, 162-178;

aristocracies, 178-185;

influence on the mind of a nation, 185-193;

capacity for territorial expansion, 193-196;

origin of rigid, 196-205;

enactment and amendment of rigid, 205-217;

definiteness of rigid, 217-221;

stability of rigid, 221-228;

interpretation of rigid, 228-234;

democracies, 234-242;

future of flexible and rigid, 242-249;

possibility of new types, 249-252;

classes of governments, 253, 254.

Contract code, in India, i. 128-130.

Contractualists, the, ii. 1-5, 163.

Convention, for amendment of constitution, i. 211, 213, 216, 476.

Cousins, intermarriage of, ii. 411.

Criminal law, i. 92; ii. 334.

Croatia, i. 268.

Cromwell, Oliver, i. 8, 200; ii. 60, 68.

Crown colonies, i. 5.

Custom: source of Icelandic law, i. 334-337;

of law generally, ii. 211, 251, 268, 334.

Customs duties, in Australian constitution, i. 522.

Dacoity, i. 25.

Dante, i. 379;

quoted, ii. 80, 158, 310.

Dartmouth college case, i. 496.

Darwin, i. 366; ii. 150.

Deadlocks, provisions against, in Australian constitution, i. 516-521.

Deceased wife’s sister, marriage with, under Roman law, ii. 412.

Decemviral legislation, at Rome, ii. 341.

Declaration of Independence, ii. 35, 139, 163.

Deference, as ground of political obedience, ii. 9, 14.

Delegations, in Austro-Hungary, ii. 92.

Democracy and rigid constitutions, i. 234-242.

Democratic character of Australian constitution, i. 535-539.

Demosthenes, quoted, ii. 126, 158.

Denmark, acquisition of Iceland by, i. 357;

constitution of, ii. 61, 63;

divorce in, ii. 450.

Dicey, Prof. E., i. 157; ii. 267, 506.

Dictator, i. 170; ii. 55.

Diet, of empire, i. 323, 355, 376.

Diocletian, ii. 319, 342, 352.

Divorce: in Ireland, ii. 370, 382, 438;

in Scotland, 382, 435-438;

in Roman law, 402-406;

influence of Christianity on Roman law, 406-408;

under canon law, 433-435;

later law in England and Scotland, 435-438;

laws in United States, 439-443;

American statistics, 443-449;

in modern European countries, 450-453;

connexion with conjugal infidelity, 461-463;

does English law need amendment? 465-469.

_Donatio propter nuptias_, ii. 398, 407, 432.

_Dos_, in Roman law, ii. 397, 406, 432.

Dower, ii. 420, 427, 432.

Drayton, quoted, ii. 150.

_Droit Naturel_, ii. 169, 173-178.

Duck, Arthur, ii. 160, 477.

Dutch law, in South Africa, i. 86, 109, 439.

Dutch republics, in South Africa, i. 430-467.

Ecclesia, of Greek cities, i. 183; ii. 297.

Ecclesiastical courts, ii. 420, 421, 435.

Edict of the praetor, i. 91, 92; ii. 275, 282-285, 291.

_Edictum perpetuum_, ii. 288.

Education, in Roman and Indian empires, i. 57, 73.

Edward I, legislation of, ii. 360.

Egypt, political position of, i. 35, 70, 102, 267, 282; ii. 61, 103.

El Azhar, mosque and university, ii. 219-231.

Elegance, in Roman law, ii. 198, 495.

Emancipation of women, ii. 401, 458-460, 470.

Empedocles, quoted, ii. 126.

Emperor: as sovereign in middle ages, ii. 80;

as source of law at Rome, ii. 308-321.

England: Roman empire compared with British empire in India, i. 1-84;

extension of English law throughout the world, i. 85-144;

the constitution, i. 145-147, 152, 155-158, 165, 168, 171, 172, 174,

183, 191, 192, 194, 206, 230, 244-249, 272;

sovereignty of Parliament, ii. 57, 61, 68, 90, 109;

conception of equity as affected by law of nature, ii. 164-167;

analytic school of jurisprudence, ii. 178-184;

want of elegance in English law, ii. 199;

legal writers as sources of law, ii. 260-269;

judges as sources of law, ii. 270-272, 278-281;

case law, ii. 281-291;

legislation by Parliament, ii. 321-331;

five epochs of legal change, ii. 343;

outline of progress of legal changes, ii. 358-366;

comparison with Roman law, ii. 367-375;

private law least affected, ii. 377-380;

law of marriage, ii. 419-424;

property relations of consorts, 424-427;

gradual amendment of law, 423-427, 468, 499;

law of divorce, 433-438;

does law of divorce need amendment? 465-469.

English language in India, i. 74.

Ennius, quoted, ii. 181.

Epicurus, ii. 127.

Equality theory of marriage, ii. 431-433, 470.

Equity, in Roman law, ii. 143;

in English law, ii. 164;

in Indian law, ii. 166;

as amending law of wife’s property, ii. 427, 428.

Erastianism, ii. 210.

Eurasians, in India, i. 66, 69, 136.

Euripides, quoted, ii. 384.

European influence over rest of world, i. 1.

Evidence Code, in India, i. 128.

Executive, the: at Rome, i. 191, 192;

in Australian constitution, i. 508, 513.

Executive Council, the: in the Orange Free State, i. 438, 457, 459,

464;

in the South African Republic, i. 445, 457, 459.

Family, its influence on Roman law, ii. 367;

as religious organism, ii. 211.

Family succession: effect of, as a centripetal force, i. 303-307.

Fathers of the Church, ii. 244, 484.

Fathers of the Republic, i. 365, 381.

Fear, as ground of political obedience, ii. 1-5, 12-14, 20.

Federal courts: in the United States, i. 399, 419, 420;

in Australia, i. 508-512.

_Federalist, The_, i. 360, 366-374.

Federation: types of, i. 469, 470, 489-492;

sovereignty in, ii. 104-108;

of British empire, i. 245-249, 553.

Fetwa, ii. 241.

Finance: in Roman and Indian empires, i. 37-42;

in Australian constitution, i. 478, 522.

Finland, autonomy of, i. 288.

Flag, the, in the United States, i. 298, 418.

Flexible and rigid constitutions, i. 145-252;

is the Transvaal constitution flexible? i. 449-451.

Folk Mot, i. 161, 162, 316, 353, 434; ii. 297.

_Formulae_, ii. 334.

France: constitution of the republic, i. 152, 202;

legal history, ii. 375-377;

divorce in, ii. 450, 451.

Franks, the, ii. 22.

Free State. _See_ Orange Free State.

Free Trade, ii. 26.

French law, codification of, i. 107.

French Republic, constitution of, i. 152, 214.

Frontiers, of Roman and Indian empires, i. 14-20.

Fundamental statutes, i. 206.

Fusion: of races in Roman empire, i. 62, 74;

of Roman and provincial law, i. 96-98.

Future life, belief in, ii. 459.

Fylki, in Norway, i. 353.

Gaius, ii. 142, 145, 153, 260, 264, 296, 304, 354, 390, 392, 512.

Gardiner, S. R., i. 200.

_Gens_, meaning of, ii. 131.

Gentili, Alberico, ii. 167, 507.

German empire, constitution of, i. 196, 204, 215, 470;

divorce in, ii. 450, 451.

German law, codification of, i. 108;

history of, ii. 375-377.

Ghosts, legal ejectment of, in Iceland, i. 345, 346.

Gierke, Prof. Otto, ii. 85, 159.

Gilman, President, i. 382.

Glanvill, ii. 261, 332.

Goethe, quoted, ii. 160.

Goði, or priest-chieftain, in Iceland, i. 317-322, 325, 326, 332, 344,

352-354.

Gortyn, laws of, i. 89.

Grace, opposed to law, ii. 209.

Graduation, at El Azhar, ii. 225.

Grammar, in Musulman university, ii. 224, 225.

Gratian, ii. 157.

Greece, constitution of, i. 209.

Greek Civilization, spread of, in ancient world, i. 2.

Greek law, i. 89, 102; ii. 145, 202.

Greenland, colonized from Iceland, i. 333.

Grondwet, the: of the South African Republic, i. 442-447;

was it a rigid constitution? i. 449-455.

Grotius, ii. 167, 168.

Group, defined, i. 257;

parliamentary, i. 541.

Growth, phenomena of, ii. 114.

Grueber, Dr. E., ii. 506.

Gunnlaug’s Saga, i. 348, 349.

Habit, as governing action, ii. 14, 45, 65.

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