Those insisting upon retaining in the bill the 20 clause permitting removal by the President alone, claimed that such legislation would remove all doubt on the subject, though they asserted that the absolute investiture of all executive power in the President, reinforced by the constitutional command that he should take care that the laws be faithfully executed, justified5 their position that the power already existed, especially in the absence of any adverse6 expression in the Constitution. They also insisted that the removal of subordinate officers was an act so executive in its character, and so intimately related to the faithful execution of the laws, that it was clearly among the President’s constitutional prerogatives7, and that if it was not sufficiently9 declared in the Constitution, the omission10 should be supplied by the legislation proposed.
In support of these positions it was said that the participation11 of the Senate in the removal of executive officers would be a dangerous step toward breaking down the partitions between the different departments of the Government which had been carefully erected12, and were regarded by every statesman of that time as absolutely essential to our national existence; and stress was laid upon the unhappy condition that would arise in case a removal desired by the 21 President should be refused by the Senate, and he thus should be left, still charged with the responsibility of the faithful execution of the laws, while deprived of the loyalty13 and constancy of his subordinates and assistants, who, if resentful of his efforts for their removal, would lack devotion to his work, and who, having learned to rely upon another branch of the Government for their retention14, would be invited to defiant15 insubordination.
At the time of this discussion the proceedings17 of the Senate took place behind closed doors, and its debates were not published, but its determinations upon such questions as came before it were made public.
The proceedings of the other branch of the Congress, however, were open, and we are permitted through their publication to follow the very interesting discussion of the question referred to in the House of Representatives.
The membership of that body included a number of those who had been members of the Constitutional Convention, and who, fresh from its deliberations, were necessarily somewhat familiar with its purposes and intent. Mr. Madison was there, who had as much to do as any other man with the inauguration18 of the convention and its successful conclusion. He was not 22 only especially prominent in its deliberations, but increased his familiarity with its pervading19 spirit and disposition20 by keeping a careful record of its proceedings. In speaking of his reasons for keeping this record he says:
The curiosity I had felt during my researches into the history of the most distinguished21 confederacies, particularly those of antiquity22, and the deficiency I found in the means of satisfying it, more especially in what related to the process, the principles, the reasons and the anticipations23 which prevailed in the formation of them, determined me to preserve as far as I could an exact account of what might pass in the convention while executing its trust, with the magnitude of which I was duly impressed, as I was by the gratification promised to future curiosity, by an authentic24 exhibition of the objects, the opinions and the reasonings from which a new system of government was to receive its peculiar25 structure and organization. Nor was I unaware26 of the value of such a contribution to the fund of materials for the history of a Constitution on which would be staked the happiness of a people great in its infancy27 and possibly the cause of liberty throughout the world.
This important debate also gains great significance from the fact that it occurred within two years after the completion of the Constitution, and before political rancor28 or the temptations of partizan zeal29 had intervened to vex30 our congressional counsels.
It must be conceded, I think, that all the 23 accompanying circumstances gave tremendous weight and authority to this first legislative construction of the Constitution in the first session of the first House of Representatives, and that these circumstances fully4 warranted Mr. Madison’s declaration during the debate:
I feel the importance of the question, and know that our decision will involve the decision of all similar cases. The decision that is at this time made will become the permanent exposition of the Constitution, and on a permanent exposition of the Constitution will depend the genius and character of the whole Government.
The discussion developed the fact that from the first a decided31 majority were of the opinion that the Executive should have power of independent removal, whether already derived32 from the Constitution or to be conferred by supplementary33 legislation. It will be recalled that the debate arose upon the clause in a pending34 bill providing that the officer therein named should “be removable by the President,” and that some of the members of the House, holding that such power of removal was plainly granted to the Constitution, insisted that it would be useless and improper35 to assume to confer it by legislative enactment36. Though a motion to strike from the bill the clause objected to had 24 been negatived by a large majority, it was afterward37 proposed, in deference38 to the opinions of those who suggested that the House should go no further than to give a legislative construction to the Constitution in favor of executive removal, that in lieu of the words contained in the bill, indicating a grant of the power, there should be inserted a provision for a new appointment in case of a vacancy39 occurring in the following manner:
Whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy.
This was universally acknowledged to be a distinct and unequivocal declaration that, under the Constitution, the right of removal was conferred upon the President; and those supporting that proposition voted in favor of the change, which was adopted by a decisive majority. The bill thus completed was sent to the Senate, where, if there was opposition40 to it on the ground that it contained a provision in derogation of senatorial right, it did not avail; for the bill was passed by that body, though grudgingly41, and, as has been disclosed, only by the vote of the Vice-President, upon an equal division of the Senate. It may not be amiss to 25 mention, as adding significance to the concurrence42 of the House and the Senate in the meaning and effect of the clause pertaining44 to removal as embodied45 in this bill, that during that same session two other bills creating the Treasury46 Department and the War Department, containing precisely47 the same provision, were passed by both Houses.
I hope I shall be deemed fully justified in detailing at some length the circumstances that led up to a legislative construction of the Constitution, as authoritative48 as any surroundings could possibly make it, in favor of the constitutional right of the President to remove Federal officials without the participation or interference of the Senate.
This was in 1789. In 1886, ninety-seven years afterward, this question was again raised in a sharp contention49 between the Senate and the President. In the meantime, as was quite natural perhaps, partizanship had grown more pronounced and bitter, and it was at that particular time by no means softened50 by the fact that the party that had become habituated to power by twenty-four years of substantial control of the Government, was obliged, on the 4th of March, 1885, to make way in the executive office for a President elected by the opposite 26 party. He came into office fully pledged to the letter of Civil Service reform; and passing beyond the letter of the law on that subject, he had said:
There is a class of government positions which are not within the letter of the Civil Service statute51, but which are so disconnected with the policy of an administration, that the removal therefrom of present incumbents52, in my opinion, should not be made during the terms for which they were appointed, solely on partizan grounds, and for the purpose of putting in their places those who are in political accord with the appointing power.
The meaning of this statement is, that while, among the officers not affected54 by the Civil Service law, there are those whose duties are so related to the enforcement of the political policy of an administration that they should be in full accord with it, there are others whose duties are not so related, and who simply perform executive work; and these, though beyond the protection of Civil Service legislation, should not be removed merely for the purpose of rewarding the party friends of the President, by putting them in the positions thus made vacant. An adherence55 to this rule, based upon the spirit instead of the letter of Civil Service reform, I believe established a precedent56, which has 27 since operated to check wholesale57 removals solely for political reasons.
The declaration which I have quoted was, however, immediately followed by an important qualification, in these terms:
But many men holding such positions have forfeited58 all just claim to retention, because they have used their places for party purposes, in disregard of their duty to the people; and because, instead of being decent public servants, they have proved themselves offensive partizans and unscrupulous manipulators of local party management.
These pledges were not made without a full appreciation59 of the difficulties and perplexities that would follow in their train. It was anticipated that party associates would expect, notwithstanding Executive pledges made in advance, that there would be a speedy and liberal distribution among them of the offices from which they had been inexorably excluded for nearly a quarter of a century. It was plainly seen that many party friends would be disappointed, that personal friends would be alienated60, and that the charge of ingratitude61, the most distressing62 and painful of all accusations63, would find abundant voice. Nor were the difficulties overlooked that would sometimes accompany a consistent and just attempt to determine 28 the cases in which incumbents in office had forfeited their claim to retention. That such cases were numerous, no one with the slightest claim to sincerity64 could for a moment deny.
With all these things in full view, and with an alternative of escape in sight through an evasion65 of pledges, it was stubbornly determined by the new Executive that the practical enforcement of the principle involved was worth all the sacrifices which were anticipated. And while it was not expected that the Senate, which was the only stronghold left to the party politically opposed to the President, would contribute an ugly dispute to a situation already sufficiently troublesome, I am in a position to say that even such a contingency66, if early made manifest, would have been contemplated67 with all possible fortitude68.
The Tenure69 of Office act, it will be remembered, was passed in 1867 for the express purpose of preventing removals from office by President Johnson, between whom and the Congress a quarrel at that time raged, so bitter that it was regarded by sober and thoughtful men as a national affliction, if not a scandal.
An amusing story is told of a legislator who, endeavoring to persuade a friend and colleague to aid him in the passage of a certain measure 29 in which he was personally interested, met the remark that his bill was unconstitutional with the exclamation70, “What does the Constitution amount to between friends?” It would be unseemly to suggest that in the heat of strife71 the majority in Congress had deliberately72 determined to pass an unconstitutional law, but they evidently had reached the point where they considered that what seemed to them the public interest and safety justified them, whatever the risk might be, in setting aside the congressional construction given to the Constitution seventy-eight years before.
The law passed in 1867 was exceedingly radical73, and in effect distinctly purported74 to confer upon the Senate the power of preventing the removal of officers without the consent of that body. It was provided that during a recess75 of the Senate an officer might be suspended only in case it was shown by evidence satisfactory to the President, that the incumbent53 was guilty of misconduct in office or crime, or when for any reason he should become incapable76 or legally disqualified to perform his duties; and that within twenty days after the beginning of the next session of the Senate, the President should report to that body such suspension, with the evidence and reasons for his action in the case, 30 and the name of the person designated by the President to perform temporarily the duties of the office. Then follows this provision:
And if the Senate shall concur43 in such suspension and advise and consent to the removal of such officer, they shall so certify77 to the President, who may thereupon remove said officer, and by and with the advice and consent of the Senate appoint another person to such office. But if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office.
On the 5th of April, 1869, a month and a day after President Johnson was succeeded in the Presidency78 by General Grant, that part of the act of 1867 above referred to, having answered the purpose for which it was passed, was repealed79, and other legislation was enacted81 in its place. It was provided in the new statute that the President might “in his discretion82,” during the recess of that body, suspend officials until the end of the next session of the Senate, and designate suitable persons to perform the duties of such suspended officer in the meantime; and that such designated persons should be subject to removal in the discretion of the President by the designation of others. The following, in regard to the effect of such suspension, 31 was inserted in lieu of the provision on that subject in the law of 1867 which I have quoted:
And it shall be the duty of the President within thirty days after the commencement of each session of the Senate, except for any office which in his opinion ought not to be filled, to nominate persons to fill all vacancies83 in office which existed at the meeting of the Senate, whether temporarily filled or not, and also in the place of all officers suspended; and if the Senate, during such session, shall refuse to advise and consent to an appointment in the place of any suspended officer, then, and not otherwise, the President shall nominate another person as soon as practicable to said session of the Senate for said office.
This was the condition of the so-called tenure of office legislation when a Democratic President was inaugurated and placed in expected co?peration with a Republican majority in the Senate—well drilled, well organized, with partizanship enough at least to insure against indifference84 to party advantage, and perhaps with here and there a trace of post-election irritation85.
Whatever may be said as to the constitutionality of the Tenure of Office laws of 1867 and 1869, certainly the latter statute did not seem, in outside appearance, to be charged with explosive material that endangered Executive prerogative8. 32 It grew out of a bill for the absolute and unconditional86 repeal80 of the law of 1867 relating to removals and suspensions. This bill originated in the House of Representatives, and passed that body so nearly unanimously that only sixteen votes were recorded against it. In the Senate, however, amendments87 were proposed, which being rejected by the House, a committee of conference was appointed to adjust, by compromise if possible, the controversy88 between the two bodies. This resulted in an agreement by the committee upon the provisions of the law of 1869, as a settlement of the difficulty. In the debate in the House of Representatives on the report of the committee, great uncertainty89 and differences of opinion were developed as to its meaning and effect. Even the House conferees differed in their explanation of it. Members were assured that the proposed modifications90 of the law of 1867, if adopted, would amount to its complete repeal; and it was also asserted with equal confidence that some of its objectionable limitations upon executive authority would still remain in force. In this state of confusion and doubt the House of Representatives, which a few days before had passed a measure for unconditional repeal, with only sixteen votes against it, adopted the report 33 of the conference committee with sixty-seven votes in the negative.
So far as removals following suspensions are concerned, the language of the law of 1869 certainly seems to justify91 the understanding that in this particular it virtually repealed the existing statute.
The provision permitting the President to suspend only on certain specified92 grounds was so changed as to allow him to make such suspensions “in his discretion.” The requirements that the President should report to the Senate “the evidence and reasons for his action in the case,” and making the advice and consent of the Senate necessary to the removal of a suspended officer, were entirely93 eliminated; and in lieu of the provision in the law of 1867 that “if the Senate shall refuse to concur in such suspension, such officer so suspended shall forthwith resume the functions of his office,” the law of 1869, after requiring the President to send to the Senate nominations94 to fill the place of officers who had been “in his discretion” suspended, declared “that if the Senate, during such session, shall refuse to advise and consent to an appointment in the place of any suspended officer,”—that is, shall refuse to confirm the person appointed by the President in place 34 of the officer suspended,—not that “such officer so suspended shall resume the functions of his office,” but that “then, and not otherwise, the President shall nominate another person as soon as practicable to said session of the Senate for said office.”
It seems to me that the gist95 of the whole matter is contained in a comparison of these two provisions. Under the law of 1867 the incumbent is only conditionally96 suspended, still having the right to resume his office in case the Senate refuses to concur in the suspension; but under the law of 1869 the Senate had no concern with the suspension of the incumbent, nor with the discretion vested in the President in reference thereto by the express language of the statute; and the suspended incumbent was beyond official resuscitation97. Instead of the least intimation that in any event he might “resume the functions of his office,” as provided in the law of 1867, it is especially declared that in case the Senate shall refuse to advise and consent to the appointment of the particular person nominated by the President in place of the suspended official, he shall nominate another person to the Senate for such office. Thus the party suspended seems to be eliminated from consideration, the Senate is 35 relegated98 to its constitutional rights of confirming or rejecting nominations as it sees fit, and the President is reinstated in his undoubted constitutional power of removal through the form of suspension.
In addition to what is apparent from a comparison of these two statutes99, it may not be improper to glance at certain phases of executive and senatorial action since the passage of the law of 1869 as bearing upon the theory that, so far as it dealt with suspensions and their effect, if it did not amount to a repeal of the law of 1867, it at least extinguished all its harmful vitality100 as a limitation of executive prerogative. It has been stated, apparently101 by authority, that President Grant within seven weeks after his inauguration on the 4th of March, 1869, sent to the Senate six hundred and eighty cases of removals or suspensions, all of which I assume were entirely proper and justifiable102. I cannot tell how many of the cases thus submitted to the Senate were suspensions, nor how many of them purported to be removals; nor do I know how many nominations of new officers accompanying them were confirmed. It appears that ninety-seven of them were withdrawn103 before they were acted upon by the Senate; and inasmuch as the law of 1867 was in force during 36 four of the seven weeks within which these removals and suspensions were submitted, it is barely possible that these withdrawals104 were made during the four weeks when the law of 1867 was operative, to await a more convenient season under the law of 1869. Attention should be here called, however, to the dissatisfaction of President Grant, early in his incumbency105, with the complexion106 of the situation, even under the repealing107 and amendatory law of 1869. In his first annual message to the Congress in December, 1869, he complained of that statute as “being inconsistent with a faithful and efficient administration of the Government,” and recommended its repeal. Perhaps he was led to apprehend108 that the Senate would claim under its provisions the power to prevent the President from putting out of office an undesirable109 official by suspension. This is indicated by the following sentence in his message: “What faith can an Executive put in officials forced upon him, and those, too, whom he has suspended for reason?” Or it may be possible that he did not then appreciate how accommodatingly the law might be construed110 or enforced when the President and Senate were in political accord. However these things may be, it is important 37 to observe, in considering the light in which the law of 1869 came to be regarded by both the Executive and the Senate, that President Grant did not deem it necessary afterward to renew his recommendation for its repeal, and that at no time since its enactment has its existence been permitted to embarrass executive action prior to the inauguration of a President politically opposed to the majority in the Senate.
The review which I have thus made of the creation of our national Executive office, and of certain events and incidents which interpreted its powers and functions, leads me now to a detailed111 account of the incident mentioned by me at the beginning as related to the general subject under discussion and in which I was personally concerned. But before proceeding16 further, I desire to say that any allusion112 I may have made, or may hereafter make, recognizing the existence of partizanship in certain quarters does not arise from a spirit of complaint or condemnation113. I intend no more by such allusions114 than to explain and illustrate115 the matters with which I have to deal by surrounding conditions and circumstances. I fully appreciate the fact that partizanship follows party organization, 38 that it is apt to be unduly116 developed in all parties, and that it often hampers117 the best aspirations118 and purposes of public life; but I hope I have reached a condition when I can recall such adverse partizanship as may have entered into past conflicts and perplexities, without misleading irritation or prejudice.
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6 adverse | |
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n.权利( prerogative的名词复数 );特权;大主教法庭;总督委任组成的法庭 | |
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8 prerogative | |
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9 sufficiently | |
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10 omission | |
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64 sincerity | |
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77 certify | |
vt.证明,证实;发证书(或执照)给 | |
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78 presidency | |
n.总统(校长,总经理)的职位(任期) | |
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79 repealed | |
撤销,废除( repeal的过去式和过去分词 ) | |
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80 repeal | |
n.废止,撤消;v.废止,撤消 | |
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81 enacted | |
制定(法律),通过(法案)( enact的过去式和过去分词 ) | |
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82 discretion | |
n.谨慎;随意处理 | |
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83 vacancies | |
n.空房间( vacancy的名词复数 );空虚;空白;空缺 | |
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84 indifference | |
n.不感兴趣,不关心,冷淡,不在乎 | |
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85 irritation | |
n.激怒,恼怒,生气 | |
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86 unconditional | |
adj.无条件的,无限制的,绝对的 | |
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87 amendments | |
(法律、文件的)改动( amendment的名词复数 ); 修正案; 修改; (美国宪法的)修正案 | |
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88 controversy | |
n.争论,辩论,争吵 | |
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89 uncertainty | |
n.易变,靠不住,不确知,不确定的事物 | |
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90 modifications | |
n.缓和( modification的名词复数 );限制;更改;改变 | |
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91 justify | |
vt.证明…正当(或有理),为…辩护 | |
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92 specified | |
adj.特定的 | |
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93 entirely | |
ad.全部地,完整地;完全地,彻底地 | |
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94 nominations | |
n.提名,任命( nomination的名词复数 ) | |
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95 gist | |
n.要旨;梗概 | |
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96 conditionally | |
adv. 有条件地 | |
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97 resuscitation | |
n.复活 | |
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98 relegated | |
v.使降级( relegate的过去式和过去分词 );使降职;转移;把…归类 | |
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99 statutes | |
成文法( statute的名词复数 ); 法令; 法规; 章程 | |
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100 vitality | |
n.活力,生命力,效力 | |
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101 apparently | |
adv.显然地;表面上,似乎 | |
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102 justifiable | |
adj.有理由的,无可非议的 | |
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103 withdrawn | |
vt.收回;使退出;vi.撤退,退出 | |
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104 withdrawals | |
n.收回,取回,撤回( withdrawal的名词复数 );撤退,撤走;收回[取回,撤回,撤退,撤走]的实例;推出(组织),提走(存款),戒除毒瘾,对说过的话收回,孤僻 | |
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105 incumbency | |
n.职责,义务 | |
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106 complexion | |
n.肤色;情况,局面;气质,性格 | |
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107 repealing | |
撤销,废除( repeal的现在分词 ) | |
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108 apprehend | |
vt.理解,领悟,逮捕,拘捕,忧虑 | |
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109 undesirable | |
adj.不受欢迎的,不良的,不合意的,讨厌的;n.不受欢迎的人,不良分子 | |
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110 construed | |
v.解释(陈述、行为等)( construe的过去式和过去分词 );翻译,作句法分析 | |
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111 detailed | |
adj.详细的,详尽的,极注意细节的,完全的 | |
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112 allusion | |
n.暗示,间接提示 | |
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113 condemnation | |
n.谴责; 定罪 | |
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114 allusions | |
暗指,间接提到( allusion的名词复数 ) | |
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115 illustrate | |
v.举例说明,阐明;图解,加插图 | |
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116 unduly | |
adv.过度地,不适当地 | |
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117 hampers | |
妨碍,束缚,限制( hamper的第三人称单数 ) | |
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118 aspirations | |
强烈的愿望( aspiration的名词复数 ); 志向; 发送气音; 发 h 音 | |
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