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of his school. Then a gentleman from Massachusetts of an act which he had a legal right to perform, he begged for a year's delay because Mr. Cortlandt induces the laborer to quit the tenancy. He advises Parker, the dissenting member of the committee, was and persuades the laborer to break or not to conunavoidably absent, — although he did send up a tinue the contract. That is not an offense against dissenting report of twenty pages. But all things the law. If a man can advise, can he not use any must have an end, and even a hundred lawyers can- lawful means to make his advice effectual?" "A not talk either sense or nonsense forever — if limited threat to commit an injury is not an actionable to ten minutes apiece — and on Friday the debate private wrong. It is only the promise of doing was wound up, Mr. Field having the last word, and something which may in the future be injurious. It the resolution was adopted by a vote of fifty-eight may never be carried into effect. It cannot be foreto forty-one. Whether it would have been adopted known that it will be." “ An action does not lie for by so large a majority, or at all, if the vote had been conspiring to do a lawful act, HOWEVER MALICIOUS taken earlier in the session, we have some doubt. THE MOTIVE, for the very obvious reason that the act But all things seemed to pave the way. The presi- was lawful.There is nothing in this language to dent seemed favorable, judging from some things in justify boycotting. The court in other parts of the his address; Mr. Platt's paper on Wednesday even- opinion carefully discriminated between boycotting ing is said to have inclined that way; and Mr. and the exercise of one's lawful individual rights. Semmes dealt a tremendous blow in its favor. Noth- They said: “It must be remembered that the intering else in the whole debate struck us so forcibly as ference complained of is not with the general rights the assertion by Mr. Semple, of Alabama, that in no of the plaintiff. The threat is not general. It is other State of the Union is the law so well known only as to his employees. The plaintiff may rent to and understood by the people at large as in Louisi- all the rest of humanity." The defendant had a ana. Mr. Field is to be congratulated on his victory, right to refuse to employ persons for any reason, which we must say was totally unexpected to us, however malicious or capricious. If the doctrine of and which we looked for still less when we heard this case was not the law, a man might be comthe Yale Professor recommend the “cat" for wife. pelled to employ others against his will. It is the beaters. At all events, the debate will certainly do case of the bigotted mistress who announces that a great deal of good in exposing the puerile and “no Irish need apply.” There is a vast difference contemptible arguments against the practicability between such cases and the case of men who conand advisability of codification. It is noticeable spire violently and forcibly to deter the public from that the chief opposition in the convention came dealing with a particular man. They may peaceably from Massachusetts—although Story was a believer in refuse to deal with him themselves -- there is no codification - New York, New Jersey and Pennsyl- law to compel them -- but they must not associate vania, while the South and West were favorable. to deter the publie. Another point which laymen

fail appreciate, but which is familiar to lawyers, Under the title of “the Boycott and the Law,” the when exercised individually and privately may be

is this, that an act which may be perfectly legal Rockland (Me.) Opinion has a long leading article to

an indictable offense when made the subject of a show that in the case of Heywood v. Tillson, 75 Me. conspiracy of several. We refer to the following 225; S. C., 46 Am. Rep. 873, the Supreme Court of Maine have declared boycotting legal! The syllabus for conspiracy of laborers against employers: Carevo

cases holding civil action of damages maintainable of the case in the American Reports is as follows:

v. Rutherford, 106 Mass. 1; 8. C., 8 Am. Rep. 287; "No action lies by the owner of a house against one

Mapstrick v. Ramge, 9 Neb. 390; S. C., 31 Am. who maliciously refuses to employ any tenant of

Rep. 415. such house, and thus prevents the renting.” This would seem to be good law, and not to authorize boycotting, inasmuch as it applies only to an indi

NOTES OF CASES. vidual act, concerning private interests, having

N Mayor, Co. a civil action for damages and not an indictment for conspiracy. The Opinion quotes the following order to prove the number of days' work performed language from the case: “Every man has a right upon a job, the plaintiff first proved by the gang to determine what branch of business he will pursue, forman that he correctly reported each day to the and to make his contracts with whom he pleases and time-keeper the number of men at work upon the on what terms he can. He may refuse to deal with job. Plaintiff then called the time-keeper, who was any men or class of men. And it is no crime for any also the head foreman, and proved by him that he number of persons, without an unlawful object in view, correctly entered the time reported to him by the to associate themselves together and agree that they wilt gang foreman in a time-book, which he produced. not work for or DEAL WITH certain men or classes of The book was then offered in evidence, held, commen, or work under a certain price or without cer- petent. The court said: “The exception to the admistain conditions.” “Tillson had a legal right to sion of the time-book presents a question of conemploy or not to employ a laborer who happened to siderable practical importance. The ultimate fact be a tenant of the plaintiff. By an act or by threat | sought to be proved on this branch of the case was

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nothing of the nature of conspiracy in it, and only In New York Court of Appeals, June

22, 1886, in

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the number of days' labor performed in making the are admitted in connection with, and as auxiliary repairs. The time-book was not admissible as a to the oral evidence of the witness, and this whether memorandum of facts known to Wilt and verified by the witness, on seeing the entries, recalls the facts, him. His observation of the men at work was or can only verify those entries as a true record casual, aud it cannot be inferred that he had per- made or seen by him at or soon after the transaction sonal knowledge of the amount of labor performed. to which it relates. Halsey v. Sinsebaugh, 15 N. Y. His knowledge from personal observation was man- 485; Gay v. Mead, 22 id. 462. The other branch of ifestly incomplete, and the time-book was made up, the inquiry has not been very distinctly adjudicated mainly at least, from the reports of the gang fore in this State, although the admissibility of entries men. The time-book was clearly not admissible made under circumstances like those in this case was upon the testimony either of the gang foremen or of apparently approved in Payne v. Hodge, 71 N. Y. 598. Wilt, separately considered. The gang foremen We are of opinion that the admissibility of memoknew the facts they reported to Wilt to be true, but randa may properly be extended so as to embrace the they did not see the entries made and could not case before us. The case is of an account kept in verify their correctness. Wilt did not make the the ordinary course of business, of laborers employed entries upon his own knowledge of the facts, but in the prosecution of work, based upon daily reports from the reports of the gang foremen. Standing of foremen who had charge of the men, and who, in upon his testimony alone, the entries were mere accordance with their duty, reported the time to hearsay. But combining the testimony of Wilt and another subordinate of the same common master, the gang foremen, there was, first, original evidence but of a higher grade, who in time, also in accordance that laborers were employed, and that their time was with his duty, entered the time as reported. We correctly reported by persons who had personal | think entries so made, with the evidence of the foreknowledge of the facts, and that their reports were men that they made true reports, and of the person made in the ordinary course of business, and in ac- who made the entries that he correctly entered them, cordance with the duty of the person making them, are admissible. It is substantially by this method and in point of time were contemporaneous with the of accounts that the transactions of business in transactions to which the reports related, and numerous cases are authenticated, and business second, evidence of the person who received the re- could not be carried on and accounts kept in many ports, that he correctly entered them, as reported, cases without great inconvenience, unless this method in the time-book, the usual course of his business of keeping and proving accounts is sanctioned. In and duty. It is objected that this evidence taken a business where many laborers are employed, the together is incompetent to prove the ultimate fact, accounts must in most cases of necessity be kept by and amounts to nothing more than hearsay. If the a person not cognizant of the facts, and from reports witnesses are believed, there can be but little moral made by others. The person in charge of the laborers doubt that the book is a true record of the actual knows the fact, but he may not have the skill, or for fact. There could be no doubt whatever, except other reasons it may be inconvenient that he should one arising from infirmity of memory, or mistake, keep the account. It may be assumed that a system or fraud. The gang foreman may, by mistake or of accounts based upon substantially the same fraud, have misreported to Wilt, and Wilt may, methods as the accounts in this case, is in accordeither intentionally or unintentionally, have made ance with the usage of business. In admitting an entries not in accordance with the reports of the account verified as was this account here, there is gang foremen. But the possibility of mistake or little danger of mistake, and the admission of such fraud on the part of witnesses exists in all cases, an account as legal evidence is often necessary to and in respect to any kind of oral evidence. The prevent a failure of justice. We are of opinion, question arises: Must & material ultimate fact be however, that it is a proper qualification of the rule proved by the evidence of a witness who knew the admitting such evidence, that the account must have fact and can recall it, or who, having no personal been made in the ordinary course of business, and recollection of the fact at the time of his examina- that it should not be extended so as to admit a mere tion as a witness, testifies that he made, or saw made, private memorandum, not made in pursuance of any an entry of the fact at the time, or recently there- duty owing by the person making it, or when made after, which, on being producel, he can verify as upon information derived from another who made the entry he made or saw, and that he knew the the communication casually and voluntarily, and not entry to be true when made, or may such ultimate under the sanction of duty, or other obligation. fact be proved by showing by a witness that he | The case before us is within the qualification sugknew the facts in relation to the matter which is the gested. In Peck v. Valentine, 94 N. Y. 569, the subject of investigation, and communicated them to memorandum there admitted was not an original another at the time, but had forgotten them, and memorandum, but a copy of a private memorandum supplementing this testimony by that of the person made by an employee of the plaintifi for his own receiving the communication to the effect that he purposes, and not in the course of his duty, or in entered at the time the facts communicated, and by the ordinary course of business. The original the production of the book or memorandum in memorandum was delivered, by the one who made which the entries were made? The admissibility of it, to the plaintiff, who lost it, but testified that the memoranda of the first class is well settled. They paper produced, and received in evidence, was a

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terms.

copy. The person who made the original memo- mimicry or action, including the powers of melody, randum was unable to verify the copy. The court poetry and dancing.' Such without doubt was the held that the copy was improperly admitted in evi- minstrel of romance. But in the same article, it is dence. The decision in Peck v. Valentine, rests upon said that in the reign of Henry the Eighth, the quite different facts from those in this case. genuine minstrel was seldom to be found in England,

and the name had popularly come to denote a mere The Court of Appeals have reversed the decision dictionaries support the conclusion that the word

musician. The modern definition of it in the in Pandorf v. Hamilton, 33 ALB. LAW JOUR. 389, minstrel has in modern times, come popularly to that damage to goods on ship by water coming in through a hole gnawed by rats is a

denoie the mere musician. In Webster's Dictionary,

danger and accident of the sea,” within the exception in a bill 1875, minstrel is defined as a musician; ' minof lading.

strelsy is defined 'singers and players,' 'a number

of musicians.' In Worcester's Dictionary, 1874, It was held in Fisher v. Lighthall, 4 Mackey, 82; minstrelsy is defined'instrumental harmony, music,

a band of musicians. In Stormonth's Dictionary, S. C., 54 am. Rep. 258, that on the lease of a furnished house there is no implied warranty of fitness 1885, minstrelsy is defined music, generally instrufor habitation. The "bug case ” of Smith v. Mar- mental;'. a number of musicians.” rable was disapproved.

Mr. Seligman, for the defendant, referring to the Vagrant Act of 1744, 17 Geo. 2, ch. 5, directed against “minstrels,” etc., said: “To regard the

word 'minstrels' in the last mentioned act as COMMON WORDS AND PHRASES.

synonymous with musicians in general would in

volve a great error and historical misconception. TINSTRELSY - ENTERTAINMENT OF THE STAGE. M

The English minstrel of that time was a strolling In Mayor, etc., v. Eden Musee Americain Co., singer and musician, a vagabond, who wandered the Court of Appeals of this state passed on these from village to village, and from county to county,

The defendant maintains a well known accompanying his song and music with dancing and permanent exhibition of wax works in the city of mimic action, and should not be confounded with New York, never surpassed except by Mrs. Jarley's, the musical artist or with the performer in an and in connection with it employed a band of instru- orchestra having a fixed abode and domicile. mental musicians, known as Prince Lichtenstein's " At and after the time of the Conquest the proHungarian Gypsy Band,” to give concerts “in a fession of the minstrel was in England a popular room or alcove which opens at an elevation into a and privileged one. During the age of chivalry larger room or hall, and is on a level with a high their persons were sacred, their profession was a gallery encircling sai all.” For these concerts passport, and their ranks were recruited from the the defendant took out no license, and the action Hower of the nobility. They were poets as well as was to restrain further exhibitions until the law musicians, and often sang verses composed by themshould be complied with. It was contended by the selves. From the time of Edward IV however plaintiff that this music was “minstrelsy” within the exalted character of the original minstrels was the statute which enacts that "it shall not be law-gradually lost, and their social degeneracy soon beful to exhibit to the public in any building, garden came complete. The invention of printing, coupled or grounds, concert-room, or other place or room, with the increased cultivation of poetry and music in this city, any interlude, tragedy, comedy, opera, by men of genius no longer influenced by the ideas ballet, play, farce, minstrelsy, or dancing, or any of chivalry, accelerated their downfall. Before other entertainment of the stage, or any part or Elizabeth closed her reign, the degradation of parts therein, or any equestrian, circus, or dramatic minstrelsy was completed. A statute in her 30th performance, or any performance of jugglers, or year adjudged minstrels to be punishable as rogues rope dancing, or acrobats, until a license for the and vagabonds. In the words of a satiric poet of place of such exhibition for such purposes shall the times have been first had and obtained, as hereinafter

· Beggars they are by one consent, provided.” The briefs of counsel are replete with

And rogues by act of Parliament.' learning, and some extracts will be amusing as well Bishop Percy, in his “Essay on the Ancient as instructive.

Minstrels in England,' being an introduction to the Mr. Lacombe, for the plaintiff, said: “In Jacob's Reliques of Ancient Poetry' (Pritchard's edition, Law Dictionary, vol. 4, page 287, minstrelsy is Lonāon, 1876), says on page XXIII: "The minstrels defined thus: “Minstrelsy, derived from the French were an order of men in the middle ages who subsismenestrel, a musician, fiddler or piper.' In the ted by the arts of poetry and music and sang to the Encyclopædia Britannica, under title “Minstrelsy,' harp verses composed by themselves or others. They we find the following definition: “An ancient term also appear to have accompanied their songs with applied equally to a singer and a instrumental per a mimickry and action, and to have practiced such former, derived from the French menestrel.' In the various means of diverting as were much admired same article it is said that "it would seem that the in those rude times, and supplied the want of more minstrel, occasionally at least, set off his singing by refined entertainment.' And on page XLVII: "The

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minstrels set off their songs with all the arts of " The fact that in many of the standard dictiongesticulation, etc., or * * united the powers of melody, aries ‘minstrel' is also defined musician,' and poem aad dance. And on page LXXI: It was * minstrelsy' as 'instrumental harmony' or 'music,' common for the minstrels to dance as well as harp does not militate against the results above arrived and sing. * * * They probably, among their other at. These are not the ordinary, but the poetic and feats, played tricks of slight of hand.'

figurative significations of the terms, as will be seen "So, in the International Encyclopædia we find from the poetic citations used in such dictionaries minstrels to be defined, "a musician of the middle in illustration of said definitions; just as in the ages, who was also a poet and singer. * * The figurative sense, the word minstrelsy is also used in ministrels appear to have accomplish their song the sense of poetry and of song; as for instance in with mimicry and action.'

the phrase "the minstrelsy of the Scottish bards.' " In Appleton's American Encyclopædia, minstrels (v. Webster's Dictionary.") are said to be, 'a class of men in the middle ages “The true reason for the use of the word 'minwho amused their patrons by the arts of poetry strelsy' in the later acts instead of the former phrase and music, singing to the harp their own verses or 'negro minstrelsy,' is not far to seek. Negro minthe popular ballads and metrical histories of the strels were originally companies of vocalists, who, times. They accompanied their music with mimicry with blackened faces and hands, and grotesquely and action.'

attired, gave public entertainments limited to negro "In Moore's Encyclopædia of Music, minstrels songs, negro jokes, conundrums, dances, etc., acare described as "certain poet musicians of former companied by violins, banjos and castanets. In the times whose profession it was to wander about the course of time however these performances, though countries they inhabited, singing panegyrical songs still retaining their general original comic and and verses on their occasional benefactors, accom- theatrical character, had developed a tendency to panying themselves on the harp, violin or some cosmopolitanism in the nature of the songs, jokes, other instrument.'

etc., so that the latter were eventually no longer con"In Johnson's New Universal Cyclopædia, min- fined to those of negro origin. And the word strels are said to be the name applied during the negro' was dropped from the act of 1862, doubtmiddle ages in England, Scotland, France and less with a view to prevent the obvious opportunity Normandy to strolling musicians, who sang to the harp for evading the law requiring a license to be taken - verses composed by themselves and others, and out for the performance of negro minstrelsy, by usually accompanied with dancing, mimicry and other simply dispensing with the negro complexions of the devices, to the amusement of royal or noble patrons.' performers themselves as well as of their songs and

"In Dr. Johnson's Dictionary, minstrel is defined: jokes." * Itinerant musician.'

(Perhaps the word “negro " was dropped out of “Finally, in Burns' Law Dictionary (published in respect for the new constitutional status of the 1792), under the title, Minstrels, we read: "Min- colored brother. We only throw this out as a sugstrel, in the laws against vagrants, signifies an itinerant gestion.) musician wandering about the country in a state of Mr. Seligman, goes on: “ The common, ordinary strolling and idleness.'

and popular signification of the word 'minstrel'-in "From the above extracts it appears clearly that fact, the only one which would convey any meaning the word minstrel within the meaning of the above to the common people of to-day-is that synonymous Vagrant Act did not signify an ordinary musician or cognate with ' negro minstrel.' Thus, the People's or player in an orchestra, but was therein used in Cyclopedia (New York, 1879), under the title, its popular and universally accepted sense, as a Minstrels, after describing the strolling musicians of strolling musician, and one whose music was but the middle ages, uses this language: 'At present accessory to singing, mimic action, dancing and the word, poetically, denotes a poet, and popularly, feats of like kind."

those who give entertainments of comic, or negro songs.' "Perhaps no stronger argument could be em- So also in Johnson's New Universal Cyclopedia, ployed against the use of the word minstrel as syn- we read under the same title, as follows: 'In modern onymous with musician, in the generic sense, than times the name has been applied in a double sense. the fact that both before and after the passage of The comic singers of negro and other melodies are known the above Vagrant Act of 1744, that master musician, as ' minstrels,' while the same term is often employed George Friedrich Haendel, composed and brought in a complimentary sense nearly as the equivalent of out in London in rapid succession his sublime orato- poet. this latter conception, Scott's 'Lay of the rios, or sacred music dramas, with the aid of very Last Minstrel' is a good example."" large and highly trained orchestras, which he him- Mr. Seligman might have cited Nanki Poo's song self conducted. See Burney, History of Music, vol.

in - The Mikado:" A wandering minstrel I." 4, pp. 360, 664. We have yet to hear that the great But it would not answer to lay much stress on the Haendel, whose name is revered by the English Vagrant Act of 1744, for that act was directed people, and who has moved so many thousand souls against gipsies among others, and the minstrels in by his grand tone-preaching, was ever apprehended question profess to be gipsies.' We wonder brother as a minstrel and punished as a rogue and vaga- Lacombe did not see that. bond under the above Vagrant Act.

Mr. Seligman starts out by saying: “ It will not

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be contended by plaintiffs that the musical perfor- John W. Stevenson, of Kentucky, who as its president mances in question constitute 'entertainments of the

a year ago, in this place, and in the presence of many

now gathered in this assembly, performed the same stage. There is no stage, no curtains, no scenery,

duty with characteristio fidelity and care, bas been no actors, no acting, in fact, nothing of the character suddenly taken from us by death withiu the past of dramatic or theatrical representation.” This is a week, and on the eve of our annual gathering. After very good device – to scoff at your adversary's a loug life, filled with useful labors in the sphere of bis strongest argument, and pay all your attention to profession and in the service of his State and of bis his weak one.

country, he has ceased from his labors, leaving to bis Mr. Seligman was right in his asser

kindred and to the community in which he lived an tion, however. His antagonist did not take that

honored name, and to us a memory fragrant with the ground, which it seems to us was his only, or at charm of his kindly, genial nature and of his enlightleast his strongest one. There is certainly such a ened sympathy with our best endeavors. thing as the is concert stage," and that was what

Since our last annual meeting regular legislative sesthese gipsies were on. And that is the ground that sions have been held in fourteen States-Connecticut

,

Georgia, lowa, Kentucky, Maryland, Massachusetts, the Court of Appeals adopt. They pay very little

Mississippi, New Hampshire, New Jersey, New York, attention to " minstrelsy," merely saying that the Ohio, Rhode Island, South Carolina and Virgiuia. word has a wider signification in modern use than The Session Laws of the Legislature of Michigan of in former times, and they hold that the music in 1885 were not published in time to enable my predequestion is an "entertainment of the stage.” We

cessor in office to examine and report upon them at

the last annual meeting. advise all our readers to go to hear the Prince's

A special session of the Legislature of Kansas was band; they are excellent, and this suit is a good

held in January, 1886. Adding these statutes to the advertisement for them.

list, there are in all sixteen States whose legislation,
besides that of Congress, is to be reviewed.

The fact that the Legislatures of less than one-balf
AMERICAN BAR ASSOCIATION.

of the States have been convened this year is due to
the very general adoption of the system of biennial

sessions. Annual sessions are held now in only about
ADDRESS OF WILLIAM ALLEN BUTLER, OF one-third of the States.
NEW YORK, PRESIDENT OF THE

This expedient, resorted to mainly as a measure of
ASSOCIATION,

economy, and as the most available means of lessening

the flagrant evils of pernicious and ill regulated legisON

the recurrence of our annual meeting it is a lation, is at once a standing admission of the mischiet

source of special satisfaction to me to welcome to of over-legislation and of inability to grapple with the the State of New York, and to the most attractive of

mischief by any other means thau that of restricting its summer resorts, so many members of the Ameri.

the opportunities of its exercise. can bar. Your presence attests the fact that one pur- For a people claiming pre-eminence in the spbere of pose of our organization is already fulfilled in the popular government, it seems hardly creditable that closer union of the members of our profession in the

in their seeming despair of a cure for the chronic evils several States in that friendly personal intercourse

of legislation they should be able to mitigate them which cannot fail to give inspiration and strength to

only by inaking them intermittent. Under the bienour efforts for the improvement of the law. We are nial system tbe temporary relief enjoyed in what are happily exempt from some of the disturbing elements

called the “off years" seems thus far to have recon. which so largely inhere in other learned professions.

ciled the body politic of the several States which have We have no conflicting and contending schools, or

adopted it to the risk of an aggravation of the malady sects, or parties, and the erravd which brings us here when the legislative year comes round and the old is one which combines with a true spirit of fraternity

symptoms recur. an unselfish purpose to advance the welfare of our

The secretaries of State with whom I have commucommon country by strengthening the foundations nicated concur in certifying that no public inconvenof justice and purifying the methods of its adminis

ience is caused by the biennial system, and one of tration).

them, in the State of Nebraska, in answer to my query, The eighth article of our Consititution provides that if bienuial sessions occasion any public inconvenience the president shall open “each annual meeting with

caused thereby, writes: “None whatever. The puban address, in which he shall communicate the most

lio interests would be better subserved by having legnoteworthy changes in statute law on points of gen

islative sessions held only once is four years." eral interest made in the several States and by Con- A careful scrutiny of the legislation going an angress during the preceding year.

nually, or biennially, in the several States brings into The same article makes it the duty of the member of special prominence two striking facts: first, the great the General Council from each State to report to the disproportion between the number of bills introduced president annually, on or before May 1, any such leg.

into the Legislature and the number which become islation in his State.

laws, showing how largely the sessions are ocoupied By the kind attention of the members of the Gen- with attempts at unnecessary or impracticable legislaeral Council and of the secretary of the Association, tion; and second, the equally great disproportion bewhich I gratefully acknowledge, the task of examin- tween laws which promote private and local interests, ing the statutes enacted since our last meeting has

and those which are of general public concern. been materially lightened, and by direct correspond- A few examples from statistics furnished me from ence with the secretaries of State of the several States

official sources will suffice to illustrate these points. I have become possessed of some additional facts per

At the last session of the Legislature of Alabama tha tinent to the subject to which the mandate of the number of bills introduced was 1,469; of bills passed, Constitution now directs our attention.

442. In Colorado, bills introduced, 700; passed, 178. At the threshold of this investigation we must

In Illinois, bills introduced, 1,107; passed, 131. In pause a moment, arrested by the thought that one of Iowa, bills introduced, 1,113; passed, 181. In New the most honored and esteemed members of our body, Jersey, bills introduced, 712; passed, 275. Iu Peun

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