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year he would have drifted down the river, have passed through Texas, and entered into the uncongenial service of Mexico, and been present, on the 21st of that montn, at the battle of San Jacinto. One or the other of the embarrassments suggested must have existed, if this man was the same one who afterwards obtained the

dishonor. He had some conversation, as wit-
nesses state, in which he declared that his
friends would not hear from him until he was in
better circumstances, and that he would change
his Christian name, retaining the name of
Hardy. We place little value on the evidence of
these trivial circumstances, given thirty or for-
ty years after the occurence, there being noth-land grant in question.
ing at the time or occurring since, to impress
the conversation on the mind of the witness.
That a man from any cause, desirous of conceal-
ing himself from his relatives, should retain his
family name and seek to effect that object by
changing his Christian name only, we think is
hardly credible.

If we correctly understand the evidence, no witness who ever knew or saw John Hardy in Canada, also saw Thomas M. Hardy, who died at Benicia in 1848, and identified them as the same person. There is, however, evidence that John Hardy was in the Southern States and in Mexico at periods several years after leaving Canada. A number of witnesses testify to meeting a Mr. Hardy in various parts of Mexico, at different times, from 1839 to 1846. Mr. Galbraith Lindsay testifies that in the winter of 1836-7, in Natchez, Mississippi, he frequently saw a man calling himself John Hardy, with whom he talked about persons and affairs in Canada, and was satisfied that he knew the persons and places of which he spoke, and that he was John Hardy. Lindsay was in Natchez four months on this occasion, and saw Hardy at different times during a period of four weeks. Two observations suggest themselves in relation to his evidence: 1. That Hardy had not that time made any change in name. He called himself, he says, John Hardy. If from the motives of anger or disappointment suggested, he determined to change his name, he seems to have reconsidered the determination, and at this time bore his true name. 2. Hardy told the witness that he had come down the river, and that he had worked as a carpenter, repairing boats or building boats up the river. It does not appear that he told him that he had been a soldier in the Mexican service, or that he had been in or seen the battle of San Jacinto. Although he might not have desired to proclaim this fact in the Southern States, would he have been likely to omit so important a feature of his life in his frequent conversations with his newly found countryman? Thomas M. Hardy, it is pretty clearly shown by the evidence of Baldridge, was in the Mexican service at the battle of San Jacinto, which occurred on the 21st of April, 1836, or witnessed the battle. Again; would one who had taken the Mexican side in that contest, be likely to return at once to the Southern States, where as all know, whose recollection goes back to that period, the Texan ex

citement was intense?

Testimony is given by Thomas Hardy, a cousin of John Hardy, to the effect that in 1847 he received a letter from John Hardy signed with that name, and post marked Monterey, California. The letter stated that the writer was building a mill, had a block of land in California, and wanted his son to come out; stated that he had reached California by the way of Texas, and witness thinks by way of Mexico; that he "had done well, and we could all get rich if we would come out there." The substance of the letter the witness communicated to John Hardy's son, and acknowledged to Hardy the receipt of the letter.

Without intending an imputation upon the veracity of the witness, we may say that this evidence is open to several criticisms:

1. It is an unfortunate circumstance that the letter is not produced, or that a most diligent search has not been made for it.

2. The letter was written and received seventeen years before the witness testifies to its contents. He is a member of the family making the claim, and may be assumed to be familiar with the hopes, wishes and traditions of the family and with their theories on the subject. Although he has no interest in the claim, it is not improbable that these circumstances may have given to his evidence a point and particularity that it would not otherwise possess.

3. Alexander, the son, was then twenty-two years of age, having been born in 1825, according to the allegation of the bill. Why did he not accede to his father's request? Why did he not strike out as his father had done, and with a prospect before him so much better than his father had? The evidence does not give us the reason. No attention seems to have been paid to the invitation, by the son or by the family. That this should be, seems scarcely consistent with the idea of the actual receipt of such a

letter.

4. The letter purported to come from Monterey, in 1847. Now, at that time, Thomas M. Hardy lived on the Cache Creek, in the Sacradred miles from Monterey, which was on the mento region, one hundred fifty or two hunand in 1848, until his death, and for several coast. That he lived there during that year, years previous, is proved by numerous witmules and much other property. He there had his ranch, his horses, his

nesses.

The letter stated that he had built a mill and had a block of land. The presumption is that he wrote and sent his letter from the place If we suppose that this conversation and rec-where he resided; that he was building his mill ognition by Lindsay occurred at the beginning of the year 1836, the difficulty seems to be equally great. He conferred with Lindsay about his pursuits and employment, and was advised by him to go into the country and pursue his business as a hewer, where he could obtain good vages. No suggestion of Texas or Mexico passed between them. He came from up the river, and it is difficult to believe that before April of that

there, and that his block of land was at the same place. Of course this is not certain, because he may have built in one place and lived in another, one hundred or two hundred miles distant. His land may have been distant both from his mill and his residence, or he might have had his letter mailed at a place far off from where he wrote it. All these suggestions are possible but not probable, and the intend

ments of law are against them. For these reasons we do not attach much importance to the letter, said to have been received by Thomas Hardy in 1847.

It should be added in support of the statement of the witness, that he testifies that some friends of the family had been in the Mexican service.

In this connection may be considered the evidence of Mr. Gillespie, offered to show that John Hardy was at Monterey, and that he was the same man who lived on Cache Creek. Mr. Gillespie, an officer of the United States sloop of war Cyane, testifies that a Mr. Hardy was in the service on that vessel in June, 1846; that he saw him also at San Diego and Los Angelos, and afterwards at his place on the mouth of the Feather River, where he ferried Commander Stockton and himself across the river in July, 1847, at his ranch, known as Hardy's ranch. Los Angelos and San Diego are some four hundred miles distant from the Cache Creek, on which Hardy was a resident during the years 1842-1847, as deposed by many witnesses. That Mr. Gillespie thus testifies that he was on board his vessel, and was at San Diego and Los Angelos in 1846, and that the same man was in the Feather River region (which is the same as the Cache Creek region) in 1847, is but another instance of the irreconcilable character of the evidence before us.

That Hardy was in Cache Creek, Sonoma region, during the years 1842-1847. as well as in 1847 and 1848, was sworn to by Davis, by Fallon, by Leese, by Bidwell (who says he saw him every day from 1843 down to 1847), by Sutter and many others. In his prayer for the grant to the Mexican Government which bears date September 20, 1843, he certifies that he was then established on the frontier of Sonoma. The Hardy on the Cyane, at San Diego and Los Angelos, who wrote home from Monterey, if any one did could scarcely have been the same man who made this petition and received the grant, and lived during all these years on the Cache Creek. Other witnesses speak of knowing a Mr. Hardy in the southern part of California in 1844-5-6. If there was such a man, he may have been John Hardy, but he was not Thomas M. Hardy.

The evidence of Lindsay and Gillespie which we have thus considered, and the evidence of Thomas Hardy that he received a letter from John Hardy post-marked Monterey, which we have also considered, are the only pieces of testimony in the case that approach to the character of direct evidence. That they are not very direct is apparent, and that they are not entitled to any considerable weight, we have endeavored to show.

We will now refer to the circumstances in evidence, which the complainants think entitle them to a decree in their favor.

The complainants give great weight:

1. To the evidence that the handwriting of the name Hardy, attached to the espediente, and the loose paper on which the grant was made, is the handwriting of John Hardy, although the name signed is that of Thomas M. Hardy.

2. To the evidence that the peculiarities of person, of habits and manners exhibited by John Hardy, were exhibited also by Thomas M. Ted and,

3. To his declarations that he was from Canada, and had left a family there.

As to the first point. We cannot but think that there is great aoubt of the principle of this rule of evidence. The man being ascertained, it is competent to prove that a signature in question is his, by those who have seen him write and know his handwriting. Although a com|parison of handwritings is not generally allowable, the evidence of a witness is based upon a mental comparison of the writing presented with that before seen by him. But, it is a different proposition when the identity of a man is to be established by proving that a paper, whose origin is disputed, looks like one which he is proved to have signed.

In relation to comparison of handwritings, i. e., where genuine signatures are put in evidence to enable the jury to judge by comparison, Bennett, J., in Adams v. Field, 21 Vt., 256, says: "Those having much experience in the trial of questions depending upon the genuineness of handwriting, will not require to be reminded that there is nothing in the whole range of the law of evidence more unreliable, or where courts and juries are more liable to be imposed upon."

In the present case the evidence of this character is entirely unreliable. It is given by persons in Canada unskilled in the subject, but who from relationship to John Hardy, or early ac quaintance with him, seem to be supposed to be especially qualified to speak on the subject. Some men are called who claim to be skilled in the subject of genuine handwritings, and who have experience in comparison of handwritings. No intelligent court should be willing to base a judgment on evidence so little satisfactory as this evidence is, as given in this case. A note for five dollars and fifty cents, signed by John Hardy, bearing date in 1831, and proved by some witnesses to have been signed by him, is taken as the standard. This note is not admitted to be genuine.

See, 1 Green. Ev., sec, 577.

The proof is in 1864, of a signature made in 1831. The competency of this evidence is quite doubtful. A writing to Mr. Leese is also produced. The body of the note is plainly in a different handwriting from the signature, and was so proved to be, and yet some of the experts who assume to identify the signatures as made by one man, are not able to state whether it was written by the same hand that signed the note. Hardy was a mechanic, not much accustomed to writing while at home, and his signature to the note is of that stiff, unpracticed character common to the signatures of such men. Although the letters proving the signature of Thomas M. Hardy are, in many instances, like those in the signature of John Hardy, the signature is in its general appearance more easy and flowing than that of John Hardy.

Again; how is it possible that John Hardy signed the papers containing the statements to be found in these documents? Thomas M. Hardy may well have done so, but we find it difficult to believe that John Hardy could have done it. The espediente is a petition signed Thomas Hardy to the military commandant of the frontier of Sonoma for a grant of land. and is dated Sonoma, September 20, 1843. Accompanying this is a document styled the loose

Mr. John Bidwell was called by the complainants to identify Hardy, of Cache Creek, as the father of the complainants. No witness called appears more favorably upon the record than Mr. Bidwell, He describes the Hardy he

paper, signed also by Thomas Hardy, which states that he arrived at the Port of Vera Cruz, in the year 1825, in the Victoria vessel of war, in the position of lieutenant of the same; that on various occasions he has rendered services to the Mexican Nation in the same manner pre-knew from 1843 to 1847, as being five feet seven viously, and for this reason he is considered as naturalized. This statement may have been made of some Hardy who came to Vera Cruz on The Victoria in 1825, and entered into the maritime service of Mexico, but it was not true of John Hardy, who did not leave Canada until 1831, and who was in Natchez during the winter of 1836-7, as testified by Mr. Lindsay, and who never performed any maritime service for Mexico, so far as is proved by the evidence. We do not find evidence under this head to sustain a finding of the identity of John and Thomas Hardy.

3. Nor do we find the case supported either by the evidence that the peculiarities of person of John Hardy were found in Thomas Hardy or that Hardy's declarations respecting himself and the condition of his family afford any satisfaction on this point.

The testimony is unsatisfactory, both in the character of the witnesses testifying, in some instances, and as to the result of their evidence generally. An illustration of the extravagant absurdity of some of the witnesses is found in the evidence of Wm. B. Frazer, to which reference is made without reciting it.

or eight inches high, swarthy complexion, low forehead, full cheek bones, chin broad and blunt; his nose inclined to turn up, giving him an Irish or pugnacious appearance, upper lip short, mouth rather broad; broad, blunt chin. His manner was reserved and uncommunicative. Never heard of his singing. Thinks he should have known it if he did. Spent many evenings with him, but never heard him tell an anecdote and never saw him laugh. He says his eyes were of the gray order, hair dark, inclined to be gray, and thinks he had a scar on his face, but can't tell where. His manner was repulsive,. and witness did not associate with him on account of his habits and disposition.

This description, if not positively repugnant to Thomas Hardy, certainly affords no reason to suppose that the two men were identical. Departing from this reasonable description, we find nearly every characteristic of the human face and form attributed to Thomas Hardy, from the clumsy determination of Frazer at identification, to particulars totally different from those belonging to John Hardy. The general result of the evidence of John Hardy's family, give him black hair; dark eyes, large, full The evidence of Hardy's statements regard- and expressive; dark complexion, straight nose ing his nativity, his family, and his whereabouts a little broad on the top; pleasant, open countein his previous life, are contradictory and un nance, bold and determined; a scar across his certain. Several witnesses testify that he stat-right eye; social disposition, genial and agreeed that he was born in Canada; a large number state that he said he was from Canada; a still larger number testify that he told them he was

born in England, and still a larger number either state that he said he was from England or was an Englishman. Baldridge says he told him he sat upon the mountains of Wales and saw ships sail out of Liverpool, and that he had been imprisoned in England for contempt of court.

It is proved that John Hardy was a carpenter and working on boats on the Mississippi as late as 1836-7, and yet Thomas Hardy stated that he had been sent to sea by his father at the age of fourteen, had sailed over the world in ships; that he had taken part in the revolutions in Peru, and on one occasion had there commanded a battery of artillery.

Many witnesses testify that he spoke of the children he had left at home, while others testify that when sober, he refused to speak of himself or his family.

Some testify that he spoke of his having a wife at home. Still others that he said he left Canada on account of a dissension with his wife, while others make him refer to his children only. John Hardy is described by his cousin, Thom

as Hardy, as being five feet, seven or eight inches high, weighing 165 to 180 pounds. eves nearly black, "large, full, expressive, bright." hair black and curly, good looking face, high forehead, bold and determined look, and when he laughed he did it heartily, and showed it over his whole face; with a mark over his right eye, about an inch above his eyebrow, having full and smooth voice with distinct articulation and a good singer. "He was the life of a company, quick tempered, but with fine feelings."

able; of good habits and good moral character.

The testimony of many of the California witdy, of Cache Creek, as having light hair and nesses called by the complainants describe Harwhiskers, nearly sandy, deep set eyes, pug nose, with a scar, which some locate on his brow and some on his nose; silent, reserved and ungracious in his manner, having the English peculiarity of omitting the "h" and aspirating the vowels; frequently drunk and fond of the society of loose women. It is not intended to say that, among the great number of witnesses called by the complainants, there are not many who give the California Hardy the appearance, manners and conversations which tend to the belief that he was the father of the complainants. We are, however, clear and emphatic in the opinion that a consideration of the entire body of the testimony does not prove that Thomas Hardy, who died in California in 1848, was the man, John Hardy, who left Canada in 1831. On the contrary, we are strongly inclined to the belief that it is proved affirmatively that the two men described were different men.

We have not attempted to analyze or to classify the three thousand folios of testimony which this record presents. It would be impossible to do so within the limits of an opinion of this court. We have, however, examined it carefully, and have no doubt of the correctness of the result we have reached.

This conclusion renders unnecessary a consid eration of the other questions in the case, and leads to an affirmance of the decree dismissing complainants' bill.

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WILLIAM G. HIGLEY et al.
(See S. C., 20 Wall., 375-384.)

Territory of Utah-courts of-jurisdiction of
probate court.

*1. The Act of Congress under which Utah was organized as a Territory, provided for a Supreme Court, district courts, probate courts, and justices of the peace, and distributed the judicial power 2. It gave to the Supreme and district courts a general jurisdiction at common law and in chancery, and limited and defined the powers of the justices of the peace.

among them.

3. It declared that the legislative powers should extend to all the rightful subjects of legislation not inconsistent with the Constitution of the United States or with the Organic Act.

4. The Act of the Territorial Legislature, conferring on the probate courts a general jurisdiction in civil and criminal cases, and both in chancery

and at common law, is inconsistent with the Or ganic Act, and is, therefore, void.

[No. 8.]

Argued Mar. 21, 1873. Decided Nov. 16, 1874.

IN

IN ERROR to the Supreme Court of the Ter-
ritory of Utah.

The case is fully stated by the court.
Messrs. Curtis J. Hillyer, E. D. Hoge and
Thomas Fitch, for plaintiff in error:

by a reservation that such power so granted may afterwards be "limited by law," means a law to be thereafter enacted, and not a “judicial construction of existing enactments."

It was also contended below that, as the section of the Act of Congress heretofore quoted confers an original chancery and common law jurisdiction upon the district courts, it therefore by necessary implication, excludes such jurisdiction from all other courts under the application of the maxim "Expressio unius est exclusio alterius." To this we reply that the Act of Congress referred to is not a penal statute and the maxim does not apply.

We submit, in conclusion, that the opinion of this court in the case of Clinton v. Englebrecht, 13 Wall., 434, 20 L. ed., 659, No. 379, December Term. 1871, covers the question at issue here, and entitles the plaintiff in error to a reversal of the judgment of the Supreme Court of Utah Territory, and an affirmance of the judgment of the Probate Court of Salt Lake County.

1 Pet., 543; Courtwright v. B. R. & A. W. & M. Co., 30 Cal., 580, 581.

Mr. R. N. Baskin, for defendants in error. Mr. Justice Miller delivered the opinion of the court:

This is a writ of error to the Supreme Court of the Territory of Utah.

The suit was an action on a promissory note No law has ever been enacted by Congress, anfor $1,500 brought by plaintiff in error, plainnulling or disapproving of the Territorial Stat-tiff below, in the Probate Court of Salt Lake

ute.

County. He recovered a judgment in the Probate Court. The case coming into the District Court of the Third Judicial District was reversed, on the ground that the probate court had no jurisdiction of such a suit; and this judgment being affirmed on appeal to the Supreme Court, it is brought here by writ of error

It will scarcely be claimed that the establishment and definition of jurisdiction of courts of record is not "a rightful subject of legislation," or that territorial legislation to that end with respect to local courts, is inconsistent with the Constitution of the United States. It remains, then, only to inquire if the territorial Statute, to that court. conferring common law and chancery jurisdic- The single question in the case is, whether tion upon probate courts, is inconsistent with the probate court had jurisdiction to hear and the provisions of the Act of Congress heretofore referred to.

determine such an action as it heard and determined in the present case; and this must be decided by a construction of the Statute of the Territory and the provisions of the Act of Congress organizing the Territory.

It is submitted that Congress, in declaring that the jurisdiction of the probate courts shall be "as limited by law," intended a law to be hereafter enacted, either by Congress or by the A Statute of the Territorial Legislature enacts Territorial Legislature, and that the Territorial that "The several probate courts, in their reLegislature, in conferring upon the probate spective counties, have power to exercise origcourts common law jurisdiction to an unlimited inal jurisdiction, both civil and criminal, and extent, did no more than it was empowered as well in chancery as at common law, when by the Act of Congress to do. It is further not prohibited by legislative enactment, and submitted that the failure of Congress to sub- they shall be governed in all respects [*380 sequently annul this Act of the Territorial Leg- by the same general rules and regulations as islature by a disapproving statute, validates the regards practice as the district courts." exercise of power by the Territorial Legislature, even if it had been originally of doubtful validity.

In a very learned opinion of one of the judges of the Supreme Court of the Territory, which has been furnished us, we find an ingenious It was contended in the court below, that as argument in support of the idea, that this prothe term "probate court" is usually, if not uni- vision was not intended to confer jurisdiction, versally, applied only to tribunals established but was a mere declaration of the opinion of for the transaction of probate business exclu- the Territorial Legislature that the jurisdiction sively, therefore Congress, in using the already existed. This is founded on the use of words "as limited by law," intended not the words "have power," in the present tense, statutory enactments alone, but "the instead of "shall have power," in the future. law," in its broader sense, wherein the We have no doubt that the Legislature intended construction of eminent writers and the to confer the power by that sentence. No statinterpretation of courts are considered as part of "the law." It is perhaps a sufficient answer to this, to suggest that a grant of power from the lawmaking body, accompanied *Headnotes by Mr. Justice MILLER.

ute or other law existed previously by which anyone ever supposed that such power existed. The form of expression here used is not at all uncommon for that purpose, especially in enactments which, like this, are parts of a general

383

code of laws. The Legislature was not in any manner called upon to give its opinion of the powers of the Probate Court, but it was in fact making a general system of laws for the Territory. It is inconceivable that it meant anything else but to establish the court and prescribe its jurisdiction.

But the power of the Legislature to confer this jurisdiction on the probate courts is a much more serious question.

The Organic Act, in defining the power of the Territorial Legislature, declares that "it shall extend to all rightful subjects of legislation inconsistent with the Constitution of the United States, and with that Act."

We may, I think, assume, without much hazard, that defining the jurisdiction of a Probate Court, or, indeed, of any court, may be fairly included within the general meaning of the phrase rightful subject of legislation. Nor do we think there is anything in such legislation inconsistent with the Constitution of the United States. There remains then only the further inquiry whether it is inconsistent with any part of the Organic Act itself.

That Act established a complete system of local government. It stands as the constitution or fundamental law of the Territory. It provides 381*]for the Executive, Legislative and *Judicial Departments of Government. It prescribes their functions, their manner of appointment an and election, their compensation and tenure of office. In regard to the judiciary, it creates the courts, distributes the judicial power among them, and provides all the general machinery of courts, such as clerk, marshal, prosecuting attorney, etc.

cifically limited as regards the moneyed value on which it may decide, and by the *exclu- [*382 sion of matters concerning real estate. Of the probate courts it is only said that a part of the judicial power of the Territory shall be vested in them. What part? The answer to this must be sought in the general nature and jurisdiction of such courts as they are known in the history of the English law and in the jurisprudence of this country. It is a tempting subject to trace the history of the probate of wills and the admini3tration of the personal estates of decedents, from the time it was held to be a matter of exclusive ecclesiastical prerogative, down to the present. It is sufficient to say that through it all, to the present hour, it has been the almost uniform rule among the people, who make the common law of England the basis of their judicial system, to have a distinct tribunal for the establishment of wills and the administration of the estates of men dying either with or without wills. These tribunals have been variously called Prerogative Courts, Probate Courts, Surrogates, Orphans' Courts, etc. To the functions more directly appertaining to wills and the administration of estates, have occasionally been added the guardianship of infants and control of their property, the allotment of dower, and perhaps other powers related more or less to the same general subject. Such courts are not in their mode of proceeding governed by the rules of the common law. They are without juries and have no special system of pleading. They may or may not have clerks, sheriffs or other analogous officers. They were not in England considered originally as courts of record; and have never, in either that country or this, been made courts of general jurisdiction, unless the attempt to do so in this case be successful.

It is here, then, if anywhere, that we should look for anything inconsistent with the power confered on the probate courts by the Territo- Looking, then, to the purpose of the Organic rial Legislature. The 9th section of the Act (9 Act to establish a general system of government, Stat. at L., 453) declares that "the judicial pow- and its obvious purpose to say what courts shall er of the Territory shall be vested in a Supreme exist in the Territory, and how the judicial Court, district courts, probate courts, and jus- power shall be distributed among them, and estices of the peace," and it prescribes the organ- pecially to the fact that all ordinary and necesization and number of the district courts. The sary jurisdiction is provided for in the Supreme judges of these are appointed by the President, and district courts, and that of the justices of by and with the advice and consent of the Sen- the peace, and that the jurisdiction of the proate of the United States. And then it declares bate court is left to rest on the general nature that "the jurisdiction of the several courts here- *and character of such courts as they are[*383 in provided for, both appellate and original, and recognized in our system of jurisprudence. is it that of the probate courts, and of the justices of not a fair inference that it was not intended that the peace, shall be as limited by law: Provided, that court should be made one of general jurisThat justices of the peace shall not have jurisdiction-that it should not be converted into a diction of any matter in controversy where the title or boundary of lands may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars, and the said Supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction."

court in which all rights, whether civil or criminal, whether of common law or chancery cognizance, whether involving life, or liberty, or property, should be lawfully tried and determined?

For all such cases, when tried in the district Provision is made in the same section for ap-courts, provision is made for correction of erpeals and writs of error from the district courts rors and mistakes by appeal to a higher court. to the Supreme Court of the Territory, and from But no such provision is made in regard to the that court to the Supreme Court of the United probate courts, a thing which certainly would States, but no provision is made for any such have been done if it had been supposed that all review of the decisions of the probate courts or judicial power would have been vested in them. of the justices of the peace.

It is supposed that a sufficient answer to this The common law and chancery jurisdiction course of reasoning is found in the declaration here conferred on the district and Supreme of the 9th section of the Organic Act already citCourts, is a jurisdiction very ample and very ed, that the jurisdiction of the several courts well understood. It includes almost every mat-therein provided for, "shall be as limited by ter, whether of civil or criminal cognizance, which can be litigated in a court of justice. The jurisdiction of the justices of the peace is spe

law." The argument is that this refers to laws to be thereafter made by the Territorial Legislature, and that as the power of that body ex

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