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79. ARTICULI CLERI: Articles (so intitled by Lord Coke) of Complaint against the Judges of the Realm; exhibited by RICHARD BANCROFT, Archbishop of Canterbury, in the Name of the whole Clergy: Michaelmas Term, 3 JAC. A. D. 1605. Together with the ANSWERS thereunto by all the Judges and Barons. [Lord Coke's 2d Inst. 601.] LORD Coke, in treating of the Stat. 9 Ed. 2. called ARTICULI CLERI, says:

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the lawes of the realm, and still kept, though with great difficulty, the ecclesiastical courts within their just and proper limits. The courts by pretext of these canons being at variance, at length at a parliament holden in the 51 yeare of Henry the third, Boniface, and the rest of the clergy, complained (which was ultimum refugium, and yet the right way) and exhibited many Articles as grievances, colled articuli Cleri. The Articles exhibited by the clergie either by accident or industry are not to be found; some of the Answers are exa.., * viz. Ad 16 Articulum de usuris, respe scor, quod licet episcopus, &c.—Ad 17 articulen ongeamatione, &c. respondetur, si aliquis defamatus, &c. si autem certæ personæ nominate fuerint, per quas rei veritas melius scire poterit, nominantur, ad proband' matrimonium vel testamentum: et similiter in accusatio'nibus tales personæ impediendæ non sunt, quia testimonium perhibent veritati, sed propter hoc non est congregatio laicorum faciend',

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'dominus possit deperire.-Ad 18 Artic' dominas posuit remedium.-Ad 19 Artic' respondetur, quod archiepiscopus de episcopatu vacante non se intromittat quantum ad temporalia, sed tantum se de spiritualibus intromittat, &c.-Ad 20 Artic' respondetur, quod 'de clericis occisis, et de hiis qui forsan occidi contigerit, in futurum fiat justitia, secundum legem et consuetudinem terræ, &c.—Ad 21

"Long before the making of this statute, that is, anno 42 H.3. a. D. 1258, Boniface younger ne of Thomas earle of Savoy, archbishop of Carbury, uncle of Elianor queen of Engwho was daughter of Reymond earle of Powance by Beatrix daughter of Thomas earle y, and sister to the said Boniface, made diver and many canons and constitutions provincial directly against the lawes of the realme, which canons begun thus: Universis Christi fidelibus ad quos præsens pagina pervenerit, • Bonifacius miseratione divina Cantuariensis archiepiscopus, totius Angliæ primas, et sui suffraganei in verbo salutari salutem.' And ending thus: Actum apud Westm', sexto iduum Junii A. D. 1258. In quorum omnium robur et testimonium, &c.' which being excecding long, we could not here insert. But the effect of them is, so to usurp and incroach upon many matters, which apparently belonged to the common law, as, amongst many others,quia per congregationem hujusmodi servitia the tryall of limits and bounds of parishes, and right of patronage, against tryall of right of tithes (by indicacit) against writs to the bishop upon a recovery in a quare impedit, &c. in the king's courts. That none of their possessions or liberties, which any of the clergy had in the right of their church, should be tryed before any secular judge; so as they would not have conusance of things spirituall, but of temporall also) and concerning distresses and attach-Artic' respondetur, quod excommunicatus per ments within their fees, and in effect, that no ordinarium, aut alium judicem competentem, quo warranto should be brought against them, 'et denunciatus taliter, debebit ab aliis evitari, when they had been long in possession, with an 'nisi forsan excommunicatus conqueratur se invective against the perverse interpretation by 6 esse injuste excommunicatum pro aliqua re the judges of the realme (so they termed it) of temporali, de qua non debeat coram ordinario charters, &c. granted to them, and in substance respondere, ad cujus probationem debet adagainst the ancient and just writs of prohibi- mitti, sed in cæteris quæ proponit, ut actor, tion in cases, where by the lawes of the realme C est interim evitandus.-Ad 22 Artic' mandathey are maintainable: and commandement ‘bitur justiciariis, quod non fiant aliquæ prise given to admonish the king and interdict his per totam terram de bonis aliquorum, nisi delands and revenues, and thundred out excom- 'bitæ prise et consueta.-Ad 23 Artic' res munications against the judges and others ifpondetur, quod cum aliqui tencant aliquod de they violated, or obeyed not the said canons and constitutions. And this was the principall ground of the controversies between the judges of the realme and the bishops: for this caused ecclesiasticall judges to usurp and incroach upon the common law. But notwithstanding the greatnesse of the archbishop Boniface, and that divers of the judges of the realm were of the clergy, and all the great officers of the realm, as chancellor, treasurer, privie seale, &c. were prelates; yet the judges proceeded according to

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rege in capite unde custodia debeatur, cus'todiæ omnium terrarum de quibuscunque tenentes illi tenementa illa teneant cum acci' derint (si inde custodia habere debeatur) hac'tenus ex consuetudine approbata spectarunt ad regem, sed episcopi si expedire videant, ' inhibeant tenentibus suis, ne aliqua tenementa sibi perquirant de feodis regis.'

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These Answers are yet extant of record, and are worthy to be read at large as they yet remaine; whereunto we referre the reader.

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This is to be observed, that none of Boniface's Canons against the lawes of the realm, and the crowne and dignity of the king, and the birthright of the subject, are here confirmed.

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of his fidelity and great wisdome, and Wal-
terus archiepiscopus Cantuariensis regi gra-
'tiosissimus fuit, hæc regis æquissima responsa
ad prælatorum petita obtinuit)' in the name
of himselfe and of the clergy, preferred these
16 Articles, and by authority of parliament
had the Answers here following seriatim to
every one of them.-And now it may seem
high time that we should descend to the peru-
sail of the preamble, and the Articles and An-
swers.. But before we come to it, it shall con-
duce much to the right understanding of divers
parts of this act of parliament, to report unto
you what Articles Richard Bancroft archbishop
of Canterbury exhibited in the name of the
whole clergy in Michaelmas terme anno 3 Ja-
cob. regis to the lords of the privie councell
against the judges of the realm, intitled,
Certain ARTICLES of ABUSES, which are desir-
ed to be reformed, in granting of Prohibi-
tions, and the Answers thereunto:

Upon mature deliberation and consideration, in Easter terme following, by all the Judges of England, and the barons of the exchequer, with one unanimous consent under their hands (resolutions of highest authorities in law) which were delivered to the lords of the councell. And we for distinction sake (because we shall have occasion often to cite them) call them Articuli Cleri 3 Jacobi.

1. His majesty hath power to reforme abuses in Prohibitions.

What the residue of the Articles and the Answers were, may be collected by that act of parliament entitled Prohibitio formata de statuto Articuli Cleri,' which was made in the time of Edward the first, about the beginning of his reign, which beginneth thus: Eduardus, &c. prælatis, &c. wherein divers points are to be observed against the canons of Boniface: 1. Quod cognitiones placitorum super feodalibus et libertatibus feodalium, districtionibus, officiis ministrorum, executionibus contra pacem nostram factis, felonum negotiationibus, 'consuetudinibus secularibus, attachiamentis, vi laica malefactoribus rectatis, robberiis, ⚫ arrestationibus, maneriis, advocationibus ecclesiarum, sufficientibus as sisis juratis, recognitionibus laicum feodum contingentibus, et rebus aliis, et causis pecuniarum, et de aliis catallis et debitis quæ non sunt ⚫ de testament' vel matrimon' ad coronam et dignitatem regiam pertineant, et de regno 'de consuetud' ejusdem regni approbata, et hactenus observata. 2. Et proceres, et magnates, aut alii de eodem regno temporibus nostrorum prædecessorum regum Angliæ, seu nostra authoritate alicujus non consueverunt contra consuetudinem illam super hujusmodi rebus in causa trahi vel compelli ad compa' rendum coram quocunque judice ecclesiastico. 3. Et quod vicecomes non permittant, quod aliqui laici in baliva sua conveniunt ad aliquas Objection. The clergy well hoped, that they recognitiones per sacramenta sua faciend', had taken a good course in seeking some renisi in causis matrimonialibus et testamen- dresse at his majesties hands concerning suntariis. Of the substance of this prohibition, dry abuses offered to his ecclesiasticall jurisdicBritton speaketh in these words, et queux ount tion, by the over frequent and undue granting suffert pleader en court christian auters pleas, of prohibitions; for both they and we supposed que de testament ou matrimonie, et de pure (all jurisdiction, both ecclesiasticall and temspiritueltie sans deniers prender de lay home. porall being annexed to the imperiall crowne Ou suffert lay home iorrer de vant lordinary.' of this realme) that his highnesse had been After this the Clergy, at a Parliament holden held to have had sufficient authority in himin the raigne of the same king E. 1. preferred selfe, with the assistance of his councell, to Articles intitled Articuli contra prohibition- judge what is amisse in either of his said jurisem regis,' fearing lest by reason of some gene-dictions, and to have reformed the same acrall words therein they might be prohibited in causes, which of right belonged to the ecclesiastical jurisdiction, in these words, sub hac forma impetrant laici prohibitionem in genere super decimis, oblationibus, obventionibus, mortuariis, redemptionibus penitentiarum, violenta manuum injectione in clericum vel commissarium, et in causa defamationis, in quibus casibus agitur ad pœnam canonicam im'ponendam.' And a just and legall Answer was made thereunto, as thereby appeareth. But it is to be observed, that they claimed nothing which was against the true meaning of Answer of the Judges. No man maketh the said act, called Prohibitio formata de sta- any question, but that both the jurisdictions * tuto Artic' Cleri,' nor any of Boniface's canons are lawfully and justly in his majesty, and to bee confirmed; and so these matters rested, that if any abuses be, they ought to bee reuntill the parliament holden at Lincoln in the formed: but what the law doth warrant in ninth yeare of Edw. 2, where Walter Reynolds cases of prohibitions to keep every jurisdiction bishop of Canterbury (whom the king favour-in his true limits, is not to be said an abuse, ed, saith one, singularly for the opinion he had nor can be altered but by parliament.

cordingly; otherwise a wrong course is taken by us, if nothing may bee reformed that is now complained of, but what the temporall judges shall of themselves willingly yceld unto. This is therefore the first point, which upon occasion lately offered before your lordships by some of the judges, we desire may be cleared, because we are strongly perswaded as touching the validity of his majesties said authority, and doe hope that we shall be able to justifie the same, notwithstanding any thing that the judges, or any other can alledge to the contrary.

subject, and the disgrace and discredit of his

2. The formes of Prohibitions prejudiciall to his majesties authority in causes ecclesias-majesties jurisdiction ecclesiasticall, the judges, as we suppose, notwithstanding their great learning in the lawes, will be hudly able in defence of them to satisfie your lordships.

ticall.

Objection. Concerning the forme of probibitions, forasmuch as both the ecclesiasticall and temporall jurisdictions be now united in his majestie, which were heretofore de facto, though not de jure derived from severall heads, we desire to be satisfied by the judges, whether, as the case now standet, the former manner of prohibitions heretofore used importing an ecclesiasticall court to be aliud forum à foro | regio, and the ecclesiastical law not to be legem terræ, and the proceedings in those courts to bee contra coronam et dignitatem regiam, may now without offence and derogation to the kings ecclesiasticall prerogative be contined, as though either the said jurisdictions remained now so distinguished and severed as they were before, or that the lawes ecclesiasticall, which wee put in execution, were not the kings and the realmes ecclesiasticall lawes, as well as the temporall lawes.

Answer. Prohibitions by law are to be granted at any time to restraine a court to intermeddle with, or execute any thing, which by law they ought not to hold plea of, and they are much mistaken that maintaine the contrary. And it is the folly of such as will proceed in the ecclesiasticall court for that, whereof that court hath not jurisdiction; or in that, whereof the kings temporall courts should have the jurisdiction, And so themselves, by their extraordinary dealing, are the cause of such extraordinary charges, and not the law: for their proceedings in such case are coram non judice. And the kings courts that may award prohibitions, being informed either by the parties themselves, or by any stranger, that any court temporall or ecclesiasticall doth hold plea of that, whereof they have not jurisdiction, nay lawfully prohibit the same, as well after

Answer. It is true, that both the jurisdic-judgement and execution, as before. tions were ever de jure in the crowne, though the one sometimes usurped by the see of Rome; but neither in the one time, nor in the other hath ever the forme of prohibitions been altered, nor can bee but by parliament. And it is contra coronam et dignitatem regiam for any to usurp to deale in that, which they have not lawfull warrant from the crowne to deale in, or to take from the temporall jurisdiction that which belonged to it. The prohibitions doe not import, that the ecclesiasticall courts are aliud then the kings, or not the kings courts, but doe import, that the cause is drawne into aliud examen then it ought to be: and therefore it is alwaies said in the propositions (be the court temporall or ecclesiasticall, to which it is awarded) if they deale in any case which they have not power to hold plea of, that the cause is drawn ad aliud examen then it ought to be; and therefore contra coronam et dignitatem regiam.

4. Prohibitions unduly awarded heretofore in all causes almost of ecclesiasticall cognizance.

Objection. Whereas it will be confessed, that causes concerning testaments, matrimony, benefices, churches, and divine service, with many offences against the 1, 2, 3, 4, 5, 7, 9, and 10 commandements, are by the lawes of this realm of ecclesiasticall cognizance, yet there are few of them, wherein sundry prohi bitions have not been granted, and that more ordinarily of latter times, then ever heretofore, not because we that are ecclesiasticall judges doe give greater cause of such granting of them, then before have been given, but for that the humour of the time is growne to be too eager against all ecclesiastical jurisdiction. whereas, for examples sake, during the raigne of the late queen of worthy memory, there have been 488 prohibitions, and since his ma

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all the said 488, and but 2 of the said 82, which upon due considerations with the libels in the ecclesiasticall court, they shall be able to justifie to have been rightly awarded: we suppose they cannot; our predecessors, and

3. A fit time to be assigned for the defend-jesties time 82 sent into the court of the arches; we humbly desire your lordships, that the dant, if he will seek a Prohibition. judges may be urged to bring forth one prohiObjection. As touching the time when Pro-bition of ten, nay the twentieth prohibition of hibitions are granted, it seemeth strange to us, that they are not onely granted at the suit of the defendant in the ecclesiasticall court after his answer (whereby hee affirmeth the jurisdiction of the said court, and submitteth himselfe unto the same;) but also after all allegations and proofes made on both sides, when the cause is fully instructed and furnished for sen tence: yea, after sentence, yea after two or three sentences given, and after execution of the said sentence or sentences, and when the party for his long continued disobedience is laid in prison upon the writ of excommunicato capiendo, which courses, forasmuch as they are against the rules of the common law in like cases, as we take it, and doe tend so greatly to the delay of justice, vexation, and charge of the

we our selves have ever been so carefull not to exceed the compasse and limits of the ecclesiasticall jurisdiction: which if they shall refuse to attempt, or shall not be able to perforine, then we refer e our selves to your lordships wisdomes, whether we have not just cause to complaine, and crave restraint of this over lavish granting of prohibitions in every cause without respect. That which we have said of the prohibitions in the court of the arches, we verily perswade our selves may be truly affirmed of all the ecclesiasticall courts in England,

which doth so much the more aggravate this abuse.

Answer. It had been fit they should have set downe some particular cases, in which they find the ecclesiasticall courts injured by the temporall (as their lordships did order) unto which we would have given a particular answer; but upon these generalities nothing but clamour can be concluded. And where they speake of multitudes of Prohibitions; for all granted to, or in respect of any ecclesiasticall court, we have heretofore caused diligent search to be made in the kings bench and common pleas, from the beginning of his majesties raigne, unto the end of Hilary term, in the third yeare of his raigne; in which time we find, that there were granted unto all the ecclesiasticall courts in England out of the kings bench but 251; whereof 149, were de modo decimandi, upon unity of possession, for trees of 20 yeares growth and upwards, and for barren and heath ground; and all out of the common pleas, but 62, whereof 31 were such as before, and the rest grounded upon the bounds of parishes, or such other causes as they ought to be granted for; but for that which was done in the late queenes time, it would be too long a search for us to make, to deliver any certainty thereof. And for his majesties time, they requiring to have but two to be lawfully warranted upon the libell in the ecclesiasticall court, we have six to shew to be lawfully warranted upon the libell there, and so are all the rest of like kind, by which it will appeare, that this suggestion is not onely untrue, but also, that the extraordinary charges growing unto poore men, are of necessity by meanes of the undue practices of ecclesiasticall courts.

5. The multiplying of Prohibitions in one and the same cause, the libell being not altered. Objection. Although it hath been anciently ordained by a statute, that when a consultation is once duly granted upon a prohibition made to the judge of holy church, the same judge may proceed in the cause, by vertue of that consultation, notwithstanding any other prohibition to him delivered, provided that the matter in the libell of the same cause be not engrossed, enlarged, or otherwise changed; yet notwithstanding probibitions and consultations in one and the same cause, the libell being no waies altered according to the said statute, are lately so multiplyed, as that in some one cause, as aforesaid, two, in some three, in some other six prohibitions, and so many consultations have been awarded, yea divers are so granted out of one court: as for example, when after long suit a consultation is obtained, it is thought a sufficient cause to send out another prohibition in revocation of the said consultation, upon suggestion therein contained, that the said consultation minus commode emanavit. By which pretty device the judges of those courts which grant prohibitions, may, notwithstanding the said statute, upon one libell not altered, grant as many prohibitions as they list, commanding the ecclesiasticall judges in his majesties name,

not to proceed in any cause that is so divers times by them prohibited, whereby the poore plaintifes doe not know when their consultations (procured with great charge) will hold, and so finding such and so many difficulties, are driven to goe home in great griefe, and to leave the causes in Westminster-hall, the ecclesiasticall judges not daring to hold any plea of them. Now may it please your lordships, the premissés being true, we humbly desire to heare what the judges are able to produce for the justifying of these their proceedings.

Answer. It were fit they should set downe particular causes, whereupon this grievance is grounded, and then we doubt not but to answer it sufficiently, without using any pretty device, such as is set downe in this article.

6. The multiplying of Prohibitions in divers causes, but of the same nature, after consultations formerly awarded.

Objection. We suppose, that as well his majesty's ecclesiasticall jurisdiction, as also very many of his poore, but dutifull subjects, are greatly prejudiced by the granting of divers severall prohibitions, and consultations in causes of one and the same nature and condition, and upon the selfe same suggestions: for example, in case of beating a clerke, the prohibition being granted upon this suggestion, that all pleas de vi et armis belong to the crowne, &c. notwithstanding a consultation doth thereupon ensue, yet the very next day after, if the like suggestion be made upon the beating of another clerke, even in the same court another prohibition is awarded. As also, where 570 prohibitions have been granted since the late queenes time into the court of arches (as before is mentioned) and but 113 consultations afterwards upon so many of them obtained: yet it is evident by the said consultations, that (in effect) all the rest of the said prohibitions ought not to have been awarded, as being grounded upon the same suggestions, whereupon consultations have been formerly granted: and so it followeth, that the causes why consultations were awarded upon the rest of the said prohibitions, were for that either the plaintifes in the court ecclesiasticall were driven for saving of further charge, to compound, to their losse, with their adversaries, or were not able to sue for them; or being able, yet through strength of opposition against them, were constrained to desist; which is an argument to us, that the temporall judges doe wittingly and willingly grant prohibitions, whereupon they know, before hand, that consultations are due: and if we mistake any thing in the premisses, we desire your lordships, that the judges, for the justification of their courses, may better enforme us.

Answer. It shall be good, the ecclesiastical judges doe better enforme themselves, and that they put some one or two particular cases to prove their suggestions, and thereupon they will find their owne errour; for the case may be so, that two severall ministers suing in the ecclesiasticall court for beating of thein in one and the selfe

same forme, that the one may and ought to have a consultation, and the other not. And so it is in cases of prohibitions, de modo decimandi; and hereof groweth the oversight in making this objection. And we assure our selves, that they shall not find 570 prohibitions granted into the arches since her late majesties death; for we find (if our clerkes affirme truly upon their search) that out of the kings bench have been granted to all the ecclesiasticall courts in England but 251 prohibitions (as before is mentioned) from the beginning of his majesties raigne, unto the end of Hilary terme last; and out of the common pleas not 63. And therefore it cannot be true, that so many have passed to the arches in that time, as is set downe in the article; and this article in that point doth exceed that which is set downe in the fourth article by almost 500, and therefore whosoever set this downe, was much forgetfuil of that which was before set downe in the fourth article, and might well have forborne to lay so great a scandall upon the judges, as to affirme it to be a witting and willing errour in them, as is set downe in this article.

formation, to direct them in any thing thereafter; and therefore in such cases, for brevity sake, it is usuall: but when the matter is to receive end by demurrer in law, or tryall, the consultation is in another forme. And it is their ignorance in the arches, that will not understand this, and we may not supply their defects with changing our formes of proceedings, wherein if they would take the advice of any learned in the lawes, they might soon receive satisfaction.

8. That Consultations may be obtained with lesse charge and difficulty.

Objection. The great expences and manifold difficulties in obtaining of Consultations are become very burthensome to those that seeke for them; for now a dayes, through the malice of the plaintifes in the temporall courts, and the covetous humours of the clerkes, Prohibitions are so extended and enlarged, without any necessity of the matter (some one prohibition containing more words and lines then forty prohi bitions in ancient times) as by meanes thereof the party in the ecclesiasticall court, against whom the prohibition is granted, becomes either unwilling, or unable to sue for a consultation, it being now usuall and ordinary, that in the consultations must be recited in eadem verba the whole tenour of the prohibition, be it never so long; for the which (to omit divers other fees, which are very great) he must pay for a draught of it in paper viii. d. the sheet, and for the entry of it xii. d. the sheet. Furthermore, the Prohibition is quicke and speedy; for it is ordinarily granted out of court by any one of the judges in his chamber, whereas the Consultation is very slowly and hardly obtained, not without (oftentimes) costly motions in open court, pleadings, demurrers, and sundry judiciall hearings of both parties, and long attendance for the space of two or three, nay, sometimes of eight or nine yeares before it be obtained. The inconvenience of which proceedings is so intolerable, as we trust, such as are to grant consultations will by your lordships meanes not onely doe it expeditely, and moderate the said fees; but also reforme the length of the said consultations, according to the formes of consultations in the Register.

7. New formes of Consultations, not expressing the cause of the granting of them. Objection. Whereas upon the granting of Consultations, the judges in times past did therein expresse and acknowledge the causes so remitted to be of ecclesiasticall cognizance, which were presidents and judgements for the better assurance of ecclesiasticall judges, that they might afterward hold plea in such cases, and the like; and were also some barre as well to the temporall judges themselves, as also to many troublesome and contentious persons from either granting or seeking prohibitions in such cases, when so it did appeare unto them upon record, that consultations had been formerly granted in them; they the said temporall judges have now altered that course, and doe onely tell us, that they grant their consultations certis de causis ipsos apud Westm' moventibus, not expressing the same particularly, according to their ancient presidents. By meanes whereof the temporall judges leave themselves at liberty without prejudice, though they deny a consultation; at another time upon the same matter contentious persons are animated, finding no cause expressed, why they may not at another time seeke for a prohibition in the same cause; and the ecclesiasticall judges are left at large to thinke what they list, being no way instructed of the nature of the cause which procured the consultation: the reason of which alteration in such consultations, we humbly intreat your lord-grievance, when it is well looked into, will grow ships, that the judges, for our better instruction, may be required to expresse.

Answer. If we find the declaration upon the surmise, upon which the prohibition is granted, not to warrant the surmise, then we forthwith grant a consultation in that forme which is mentioned, and that matter being mentioned in the consultation would be very long and cumbersome, and give the ecclesiasticall court little in

Answer. It were fit the particular cause were ́set downe, whereupon the generall grievance, that is mentioned in this article, is grounded; and that done, it may have a full answer: for a Prohibition is grounded upon the libell, and the Consultation inust agree therewith also; and therefore we doubt not, but the ground of this

from themselves in interlacing of much nugatory and unnecessary matter in their libells: and for the fees taken; wee assure our selves, none are taken, but such as are anciently due and accustomed; and it will appeare, that we have abridged the fees, and length of pleadings, and use no delayes, but such as are of necessity, and we wish they would doe the like, and upon examination it will appeare of which side it growes,

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