Imprimatur

TIMO. HALTON Vice-Cancel. OXON.

Moses's Charge to Israel's Judges, Opened in an Assise SERMON Preached at Salisbury, Feb. 27. 1680.

Before the Right Honourable Sr THOMAS JONES Judge of Assise.

By JOHN BENNION M. A.

Vicar of Malmesbury in Wiltshire.

Published by Command of Mr. High Sherif.

[...]. Arist. Eth. l. 5. cap. 3.

Printed at Oxford, and are to be sold by FRANCIS DOLLIF, Bookseller near the Mare-Maid Tavern. Anno Dom. 1681.

TO THE Right Worshipfull. THOMAS GORE of ALDRINGTON Esquire, HIGH SHERIF OF THE COƲNTY of WILTS.

HAD this Epistolar Address, and the Publish­ing of this Sermon it Prefaceth, been Matter of mine own free Choice; I might justly have faln under the Censure of Libelling so great a Judgment as yours. But when You were pleas'd first to summon so young and weak a Minister, as my self, on so solemn an Occasion to the Pulpit; and then to command so poor a Performance, as this of mine, to the Press; I am no farther concern'd, than in two such high Proofs of my Obedience.

But you, Sir, who have so determin'd this Dedica­tion upon your Self, are thereby as well oblig'd to the Defence of your own Reputation, how well soever other­wise establisht; as to the Patronage of this Sermon, now made Publique, against such Variety of Censure as 'tis like enough to meet withal, in this our Censorious Age. As either

First for the Plainness of the Style; tho a plain Dress best become the Natural Beauty of all Truth in general; and more especially such Practical Truth, as is the Sub­ject Matter of this Discourse. Or

Secondly the Shortness of the Sermon: Not consider­ing, it was a Word to the Wise; and that a short word to such is sufficient; especially in such Matters, whereabout their Wisdom is not only most principally, but most familiarly also conversant: Otherwise there's scarcely any one Branch of my Text, that would not have supplyed a no very fruitful Invention, with abundant Matter, for a more Copious Discourse than this of mine, upon the whole of it. These two Objections, together with a third, answer'd in the Close of my Sermon, might be made by no ill meaning Friends:

There's yet a fourth to be expected from our worst mean­ing Enemies; or some Advocates for them, whose Eies directed to, speak their Hearts also set towards their [Page] Tents, as ready to run over to them: Namely, that I am too severe against Papists, and Popish Priests.

Now to this Objection, which hath least of Reason, and most of Danger in it, I shall not (for that Cause) go a­bout to make any Defence of mine own; but here more e­specially pray in your Patronage and Protection, accord­ing to your Office; his whom you represent, the King's Majestie's, according to his Laws; and above all, the highest Defence of all, even that of God himself, accord­ing to his all wise and Powerful Providence, against both the Makers of the Objection, and those in whose behalf it is made: and this last Preservation, not for my self alone, but also, and much more, for our King against their va­rious ways of Assassinations; for our Church against their manifold Idolatries, and Superstitions; and for our State against all their Hellish Plots, and Machina­tions.

And, as for means conducing to these Ends, I yet far­ther pray, that the King may want no such Subjects, the Church no such sons, this Country no such Friends, and the whole Kingdom no such Magistrates, as your Learned and Worthy Self: the King no Subjects so truly Loyal, the Church no Sons so truly Obedient; this Country no Friends so every way faithful, and the whole Kingdom no Magistrates so altogether unbiass'd and in­capable [Page] of Corruption. Men of the right old English make, and Protestant spirit, Couragious, Ʋndaunted, bravely bearing up against and stemming the tide of all opposition from Rome and France. This is and shall be the Constant tenor in the fervent Prayers of

RIGHT WORSHIPFUL,
Your most Humble Servant and Dutifull Chaplain JOHN BENNION.
Deut. 1. 16. and part of the 17. verse.‘16. And I charged your Judges at that time, saying; Hear the Causes between your Brethren, and judge righteously between every man and his brother, and the stranger that is with him.‘17. Ye shall not respect Persons in Judgment, but you shall hear the small as well as the great; you shall not be afraid of the face of man, for the Judgment is Gods.

VVHEN Moses (the sole Judge of Israel) found the Suits and Controversies of the People to grow up and multiply, as their numbers did; he soon felt the weight of his Office a burthen too heavy for the shoulders of a single person to bear, verse 10. 12. The Lord your God hath multiplyed you; and behold, you are this day as the stars of heaven for multitude. How can I my self alone bear your cumbrance and your burthen and your strife? He therefore counsels them to make choice of other sub­ordinate Rulers and Judges; that might be as helpfull to him, so usefull to them; and withall adviseth what manner of persons to choose; men that were Wise, and Ʋnderstanding, and Known among their Tribes, [Page 2] v. 13. The Israelites approv'd the motion, and said; the thing, which thou hast said, is good for us to doe. v. 14. And they followd his advice; choose­ing Persons of that Character he had recommended to them; and when they had so done, they brought them to Moses, who did two things:

First he install'd them in their Office, v. 15. So I took the Chief of your Tribes, Wise men, and Known, and made them Heads over you.

Secondly he gave them their Charge in the words of my Text. I charged your Judges at that time, say­ing; Hear the Causes between your Brethren, and judge righteously between every Man and his Brother, and the Stranger that is with him.

Ye shall not Respect Persons in judgment, but you shall hear the small as well as the great; you shall not be afraid of the face of Man, for the judgement is God's. In which words and in the Context before, You are to take notice of

1. The Person Charging, and that was Moses, who at that time was the onely Ruler and Judge of the Israelites.

2. The Persons Charged, and they are describ'd

  • First by their Office, Judges.
  • Secondly by their Relation, Your Judges.
  • [Page 3]Thirdly by their Qualities
    • Wise
      • Men.
    • Ʋnderstanding
    • Known
  • 3. The Matter of the Charge, set down both
    • 1. Affirmatively.
    • 2. Negatively.
  • 1. Affirmatively
    • 1. Hear; Objectum
      • Quod, the Cause.
      • Cui, your Bro­ther's cause.
    • 2. Judge;

And this judgment must be

First for the Quality, Righteous.

Secondly for the Quantity or Extent of it, between every man and his Brother, and the stranger that is with him.

  • 2. Negatively
    • 1. Not respect Persons.
    • 2. Not be afraid of the face of man.

And the Reason both of the one, and the other, follows in the next words: For the Judgment is God's.

1. In the Affirmative part of the Charge the first duty enjoyn'd the Judges is to hear the Cause. And by hearing is to be understood a diligent and circumspect attention to the business in hand, to all Persons and [Page 4] Things; all Circumstances and Evidences, that may make the state of the Cause to appear; which is far­ther explain'd Deut. 19. 18. The Judges shall make di­ligent inquisition &c. like some skilfull and wise Phy­sitian, who first of all feels the Pulse of his Patient; then considers his Age, and the Constitution of his Body; is inquisitive after the time when, and the man­ner how, the Disease first begun; what alterations it hath since made; what Paroxysms, or Fits, it now hath; when they come, and how long they hold him: with these, and such like Queries he endeavours every way to be fully inform'd of the true state of his Pa­tients Body, before he will (or indeed can) prescribe a Remedy. So the just Magistrate, in matters Criminal does not pronounce Sentence; nor in matters Civil, give his Determination; till he has first duly consider'd of the Action and the Circumstances it is cloth'd with, throughly examined Witnesses, scan'd and compar'd Evidences, and us'd all other expediencies to come to the clear knowledge of the truth; which he can never do, till he has first with equal patience heard both Par­ties speak. For he that is first in his own cause, seemeth just, but his neighbour cometh and searcheth him, Pro. 18. 17. A diligent Disquisition of the Cause, and a mature Deliberation thereupon, is therefore necessary in mat­ters [Page 5] of Judicature Lib. 2. Cap. 23. Cunctari judicantem decet, imo oportet, said Seneca the Philosopher: and Sen. [...] Act. 2. [...] Seneca the Tragedian lays down the like Position, Qui statuit ali­quid parte inaudita altera, aequum licet statuerit, haud aequus fuit. He that Determines a Case at-all-adven­tures, tho perhaps he should stumble upon Justice, yet he is himself unjust; and that because he should hear both sides speak before he determines. Even the poor and illiterate Man's Tale is to be heard in his own Dialect, as well as his who can set it off in a bet­ter Dress: And there be two expressions in the Text, that afford us a double Medium or Argument to press this duty.

  • The one lyes in this Your Judges.
  • The other lyes in this The Cause of your Brethren.

To begin with the first of these, I charged your Judges to hear, from whence it will naturally follow that Judges and Magistrates were Non sed Popul Adrianus [...]. Ari [...] Epist. ad [...] not so much ordain'd for their Own sakes, as for the Peoples; not so much to Domineer and Lord it over them, as to Succour and Defend them.

Senec [...] Medea [...] Scen. prae [...] Hoc Reges habent magnificum & ingens &c.

Prodesse miseris, Supplices fido Lare Protegere. The Grandeur of Kings and Magistrates consisteth in this, that they have power to help those who are not able to help themselves. Nay, it is for this very reason, that they [Page 6] are styl'd Gods; and that by God himself, who gave them this power; and has imprinted in the very natu­ral Conscience of every man Notions of Fear and Honour, Subjection and Contribution to be given to Kings and other Magistrates and Superiors; and that not only for wrath, but for conscience sake. Yet (as the Learned e Bishop Sanderson well observes) ‘the same Serm. ad [...]tratum. Conscience which bindeth us who are under Au­thority to the performance; bindeth you who are in Authority to the requital of these duties, I say the same conscience; tho not the same wrath: For here is the difference. Both wrath, and Conscience bind us to our duties; so that if we withdraw our subje­ction, we wound our own Consciences, and incur your just wrath: But only Conscience bindeth you to yours, and not wrath; so that if ye withdraw your help we may not use wrath, but must suffer it with patience, and permit all to the judgment, of your own Consciences, and of God the Judge of all mens Consciences; but yet stil in Conscience the obligati­on lieth equally upon you, and Us: As we are bound to give you Honor, so are you to give us Safety; as we to fear you, so you to help us; as we to fight for you, so you to care for us; as we to pay you Tribute, so you to do us Right. For for this cause pay we tri­bute [Page 7] and other duties to you, who are Gods Mini­sters; even because you ought to be attending con­tinually upon this very thing; to approve your selves the Ministers of God to us for good.’ So farr that Godly Learned Bishop Sanderson: which per­haps had been too much to quote from another, but not from that every way Reverend Author.

Well then (My Brethren) if Magistrates were Or­dain'd more for Your sakes, than for their Own; it will follow; that the Judge is the People's; and there­fore his Eyes are their's to see and observe for them; his Ears their's to hear for them; he is chosen and sworne for them; he Rides their Circuit, Sits on their Bench, is Guarded and attended by them: All his Authority, Wisdome, Learning and Experience in Law-Cases is for them; tho the Judge be indeed the King's as to his Delegation to, yet is he the People's as to the Execution of his Office; deriveth his Authority from the King; is to mannage it for the King's Leige People. And therefore wonder not that We so closely urge this labor and diligence in Hearing; I charged your Judges to hear.

But Secondly, Another Argument, yet farther to inforce this duty, is taken from the Relation of the People to the Judges; they are Your Brethren: your [Page 8] Brethren by Nature, as Men; your Brethren in a Political Notion, as Members of the same Body Po­litick; and your Brethren also by Grace, as of the same Mystical Body; and therefore upon all these Considerations you are oblig'd to hear them. Thus your Brother's Liberty restrain'd by unjust Impri­sonment, his Name wounded by Reproches, his House broken up, his Sheep or his Oxen driven away, his Life endanger'd &c. doe every of them call for that Brotherly Love and Affection from you, which should move you diligently to Hear his Cause, and so to hear it, as to doe him Justice; which is the se­cond duty in the Charge given to the Judges.

2ly They must judge righteously between every Man and his Brother, and the Stranger that is with him. And this Righteous Judgement consisteth in the pro­nouncing of a Sentence conformable to Justice, after the Cause is fully understood: I say in pronouncing of a Sentence conformable to Justice; for in every Cause there is it's Justice either on this side, or that; and when the Judicial Sentence answers the Justice of the Cause, then it is Righteous.

But as this Judgment for the Quality must be Righ­teous, so for the Quantity or Extent, it must be be­tween every Man and his Brother, and the Stranger that [Page 9] is with him. As therefore the Apostle Paul said in an­other case, 1 Cor. [...] does God take care for Oxen? so may we say in this, does God take Care for Strangers? Yes he doth; For he preserves both Man and Beast; but first Man, and amongst Men first his own People, then generally all, even Strangers too; for though Strangers to you, they are not so to him, and his Providence: And as they are a part of his Care, so has he made them a part of your's also; and that the rather, because Strangers are more liable to Af­fronts and Abuses in their Persons, to Injuries and Rapines in their Estates, than other Men. These are therefore to be defended, and shelter'd by you; your Authority and Power is to be exercis'd for, and in the behalf of these, so long as they behave themselves justly and peaceably in the Land.

As our Love, and Pity must not move in too nar­row a Sphear; so neither must your Justice, and E­quity: As to that former the Apostle 2 Pet. [...] Peter says, we must add to our brotherly kindness Charity; Brotherly kindness peculiarly respecting the Brotherhood of Chri­stians; but Charity so comprehensive, as to regard Man as Man, and therefore every Man: upon which account Aristotle when reprov'd for bestowing a Charity upon a bad Man, reply'd; that he did not [Page 10] therein respect [...], not the manners, but the Man. And as to this latter Moses here in ef­fect says, you must to Justice to your Brethren add that to Strangers: nay Justice it self, in it's proper formal Act, says so too; that you who have the Admi­nistration of it, must suum cuique tribuere, distribute to every man his due Right, not only to your Brethren, Neighbours, and Countrymen, but even to the poorest honest Strangers, if the other would injuri­ously withhold it from them.

But there are a sort of Strangers amongst us, that your Justice and Judgment are to be executed against, and upon; and that in the utmost Rigor and Severi­ty, without any Constructio favorabilis of the Letter of our Law, which (as 'tis said of that of God's) killeth; who ought to have Judgment without Mer­cy, because they would have shew'd no Mercy. And these are the Birds of St. OMERS, and such like * Cages of unclean Birds; unclean Birds I say, who [...]ev. 18. 2. have Defil'd, and Birds of Prey too, who would have Destroyed their own Nest, wherein they were hatcht, and for some time bred; who, tho Native English Men, yet have made themselves first Strangers, and then Enemies both to the Church and State of England; Contriv'd their Subversion, the Murder of their gra­cious [Page 11] King, and the Ruine of a flourishing Church, and Kingdome: Of such stranger-Emissaries I shall say no more, but as once the Jews did to Pilate in ano­ther Case, John 1 If You let these Men goe, You are not Caesar's friend.

There are two Reasons in the Text to be given for this Righteousness in Judgment:

The First is drawn from the Solemn Charge given to the Judges, when they are first Invested in their Office; I took the Chief of your Tribes, Wise men and Known, and made them Heads over you; and I charged your Judges at that time to Judge righteously: answer­able to which is that Charge of Jehosaphat to his Judg­es, 2 Chron. 19. 5, 6, 7. where 'tis said that he set Judges in the Land throughout all the senced Cities of Ju­dah, City by City; and said to the Judges, take heed what ye doe: (and there is the same reason for Circuiting Judges in Diverse Counties with Us, as there was for Settl'd Judges in Particular Cities with Them) for (saith he) Ye judge not for man, but for the Lord, who is with you in the judgement; wherefore now let the fear of the Lord be upon you, take heed and doe it: for there is no iniquity with the Lord our God, nor Respect of Persons, nor taking of Gifts. Nay 'tis well known that every Judge, upon his first Installment into that [Page 12] Office, is Charg'd by the Magistrate that is above him, and that with an Oath, (another, and yet farther Bond upon his Conscience) to doe Righteously be­tween the King and his People: And therefore saies the Righteous and Impartial Judge, Justice Condemns this man to die, and if I Absolve him, I Condemn my self, I lose the favor of my God, and the peace of my own Conscience: Some would Complement, o­thers would Bribe, and a third sort would by their Threats affright me into Perjury; but I must not, I will not doe it; For the Vows of my God, and the Trust of my King are upon me: The Consideration of which makes him Charge through all difficulties, all Temptations, how great, how sweet soever, to the Discharge of his Duty; As the Souldiers of Saul did, who had sworn they would not Eat, till their Master was avenged of his Enemies; and tho they saw honey upon the Ground, (could have had it for stoop­ing) yet they would not so much as taste, because they feared their Oath, 1 Sam. 14. 24, 25, 26.

The Second reason is drawn from the Order of the Charge; you shall first Hear, and then Judge. i. e. All your Diligence and Exactness in inquiring into the matter before you, in putting Questions, Scan­ning and comparing Evidences, is in order only un­to [Page 13] this very thing, that you may thereupon proceed unto a Righteous Judgement. For by the Ear the Ʋnderstanding of the Judge is inform'd where the Justice of the cause lies; and the Understanding di­rects the Mouth to give a right Sentence; otherwise the Jury is impannel'd in vain, the Witnesses give in their Evidence, and you hear but in vain: Nay a Magi­strate, who is inquisitive where the Equity lies, but corrupt in passing sentence, acts like Herod, who Ma [...] di­ligently enquired, where Jesus the King of the Jews was, that he might come and worship him; when in­deed his intent was only to destroy him. And so much for the affirmative part of the Charge.

2ly. In the Negative part of it there are two things forbidden:

1. You shall not respect Persons. [...] translated by the Septuagint [...], and in Latine may be rendred Non agnoscetis faciem, you shall not judge according to the outward quality, state and condition of men; whether they be rich or poor, your friends or your enemies, you shall not at all re­spect the qualities of the persons, but only the me­rits of the Cause. As for Example; There are, suppose, two Prisoners at the Barr indicted for Trea­son, Murder, or the like; they both upon good evi­dence [Page 14] appear guilty; one man has no Persons, no Faces to appear for him, and so Judgment passes, that he shall die: The other appears under many Faces, the face of a Kinsman, of an Honourable, Learned, or Rich man, or great Friend; and the Consideration of this prompts the Magistrate to Spare, when he should Smite; this is to acknowledge Faces, or Respect persons in Judgment; quite contrary to that of Levit. 19. 15. (which is a full explication of this part of my Text) Thou shalt not respect the person of the Poor, nor honour the person of the Mighty. And this is to become like the Great Judge of all, who thus expresseth himself, Rev. 22. 12. My reward is with me [...], to give every man according as his work shall be. The Ballance weighes the Gold, Silver, or Iron all alike; Nor should Justice (who is therefore painted blind) know any difference between the Noble and the Base, but (as it is in my Text) should hear the small as well as the great.

2. You shall not be afraid of the face of man; which is the last duty of the good Magistrate in my Text. And certainly Courage in a Judge is sometimes as requisite as any other Qualification we have spoken of: For to what purpose does he Hear and Ʋnderstand, if he dare not determine aright? to what purpose is the sword [Page 15] of Justice put into his hand, if he dare not turn the edge of it against Offenders? and why was every step to Solomon's Throne supported with Lyons, but to teach Kings and Magistrates, that they should be men of Courage and Resolution?

As the Law is Mutus Magistratus, the dumb Magi­strate, i. e. cannot speak, but by the Magistrates mouth; so the Magistrate must be Lex Loquens, the speaking law, i. e. ought to speak the very mind of the Law in every Case that cometh before him, how severe so­ever it way be against any (even the greatest) Per­sons concern'd: which he that dares not do, looks like a painted Iupiter with a Thunderbolt in his hand; his Arm ever up, but never strikes. Law altogether unexecuted, is like a sword by the side of the Magistrate, that dares not so much as peep out of the scabbard; partially executed, like a sword but half or three quar­ters drawn; at best but like striking with the scabbard, when it should have been with the sword. This (which is bad) is to bear the sword in vain, and to no purpose, or (which is worse) mischievously and to ill purpose; such foolish pity hath not only (as 'tis in our proverb) spoil'd a Citie, but endanger'd King and Kingdom; nay many Kingdoms together; whereof I wish we had not too much Experience, in the so much suffer'd [Page 16] (and thereby even encourag'd) insolence of Popish Recusants; who as they lately were, so we may well presume they still are, designing and practiceing (for while their * principles are unchang'd, their practises will [...] Plut. [...]mo [...]o. be the same) against the Life of that sacred Person, by whose unparalleld clemency, many of them hold their own; and had effectually once taken it away, had not divine providence, still watching over it, sub­stituted a Ram instead of that great sacrifice to the Triple-Mitred Idol: A Generation they are, on whom Favour and Indulgence is as ill placed as complement on a Woolf, or courtship on a Tygre.

Now this fear of the face of man, is a peice of pu­sillanimity or cowardize in the heart of the Judge, a­rising from the Consideration of some Evils that are threatned or may befall him, in the due Execution of his Office. As thus; if I pass a righteous sentence in such, or such a Case, I may soon judge my self out of my Place and Honour, out of all my Great Friends, my Libertie, my Estate, and perhaps endanger my Life it self. And where Magistrates are so far byass'd as to pervert Judgment, I am apt to think, it is usu­ally either the Respect, or the Fear of Men that over­rules them. But when we consider it is but Man, that will be displeased, methinks there should be no [Page 17] force in the Argument. It is but man that threatens, but you have to do with the great God; and Is. 51. 12 who art thou, that art afraid of a man that shall die, and of the son of man, that shall be made as grass; and forgettest the Lord thy maker? For tho man may threaten, yet without God he cannot execute; Dan. 3 [...] Nebuchadnezar's Furnace cannot burn, nor Dan. 6 [...] Darius his Lyons devoure without Divine permission; and 1 King [...] Jeroboam's hand shrivels up, when he would offer violence to the man of God.

Now the Reason both of the Affirmative and Nega­tive Duties follows in the last words; For the judg­ment is God's: The consideration of which will give edge to the courage of the Righteous Judge, and make him as bold as a Lyon. I am (says he) God's Vice­gerent, his mouth to pass that Sentence which he him­self would have passed; and to what purpose has he styl'd me a God after his own name, but because as such I should do justice? And shall I be a Judas in the place, or a Pilate on the Bench of God? The Judgement is God's, and shall I for Fear or Respect of men bow it according to their corrupt Will and Pleasure? shall I (as much as in me lies) make the God of Truth a Lyer, an Accepter of Persons, an Op­pressor, a Condemner of the Just, and an Absolver [Page 18] of the wicked, represent the Judge of all the earth as any way not doing Right? No, God forbid; I must not, I dare not but give Righteous sentence, for the judg­ment is God's: tis his, and he will defend me in every Righteous Judgment; and therefore I neither value the Envy or Reproaches of those that are below, nor the Frowns and Menaces of those that are above me. The judgment is God's i. e. He notes and observes all that is done, and will call over the judgment again if it be not Righteous. Such a time Barabbas, a Rogue, a murtherer was absolv'd, and Christ crucifyed by Pilate; Such a time Jezabel took away Naboth's life, that she might have his Vineyard; So many Traytors acquit­ted at another time, so many strangers and widows oppressed in their cause, and (with Reverence be it spoken) God in his own seat baffled to his face, and sometimes Friends, nay sometimes Enemies pre­ferr'd before him. But however remember this, the Case will one day come to another hearing; For the judgment is God's.

And now, my Lord, what has been spoken upon this subject, having had no less of practice, then Do­ctrine in it; I shall not expose my self to your judi­cial censure for an Action of Trespass upon your time [Page 19] (if not your patience also) in any farther distinct and particular application. Nor yet was, what in that more general way, hath been already said, intended to instruct you in, but only mind you of, and move you to your before well known Duty; which if it may not be done, I am yet to learn the use of an Assise Sermon. In that sense therefore your Lordship's Candor hath I doubt not all along understood me.

But I hope I as little need, as love Apologie. For though some may perhaps think I have us'd more liberty than becometh so young a man, with your so great Dignity of Office, and no less Gravity of Wisdom, for an agreeable mannagement, and discharge of it; yet would they withall consider me as a minister of Iesus Christ, and one who desireth to be found faith­full to him, they might in my Text, and those other Scriptures on this solemn occasion made use of, find Gravity enough unlessen'd by any Levity of mine, to excuse my Boldness, were it needful.

Tis true, my Lord, you are upon the Bench, in the stead of God to Us; and it is no less true, we are in the Pulpit, in the stead of Christ to you: And there­fore as being a minister of Christ, I beseech you in his stead, that you would take this Charge of Moses home to your Soul; that you would with Diligence and [Page 20] Patience hear the Causes between your Brethren; and when upon hearing and due Examination, you come rightly to understand them, that you would judge righteously between every man and his Brother, and the stranger that is with him; not respecting Persons in judg­ment, not fearing the face of man how great soever, as considering there is a greater above him, who is with you in the judgment, and to whom you must one day be accountable; For the judgment is God's.

FINIS.

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