Neal v. Delaware/Dissent Field

by Stephen Johnson Field

United States Supreme Court

103 U.S. 370

Neal  v.  Delaware

MR. JUSTICE FIELD.

I am unable to concur with the majority of the court in the decision in this case. It proceeds upon two assumptions, both of which, in my judgment, are erroneous: one, that on motions to the court the averments of a party as to matters not resting within his personal knowledge, if not specially contradicted, are to be taken as true; the other, that the clause in the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]]]]]] to the Constitution, prohibiting the States from denying to any person within their jurisdiction the equal protection of the laws requires them, in cases affecting the rights and interests of persons of the colored race, to summon persons of that race for jury service.

The defendant, who is a colored man, was indicted in May, 1880, in the court of general sessions for the county of New Castle, in the State of Delaware, for a rape upon a white woman, a crime punishable in that State with death. On motion of the attorney-general of the State, the indictment was removed for trial to the Court of Oyer and Terminer of the county. The defendant then presented a petition, praying for its removal to the Circuit Court of the United States, setting forth as grounds for the application, that he was a citizen of the United States and of the State of Delaware, of African race and descent; that by the statutes of the State all persons qualified to vote at its general elections were liable to serve as jurors, with certain exceptions, not important to be here mentioned; but that, by the Constitution of the State, the right of an elector was enjoyed only by free white male citizens over the age of twenty-one years; that the Levy Court of New Castle County was required, at its annual session in March, to select from the list of the taxable citizens of the county the names of one hundred sober and judicious persons to serve, if summoned, as grand jurors at the several courts to be held that year; and also the names of one hundred and fifty other sober and judicious persons to serve, it summoned, as petit jurors in such courts; that the Levy Court, at its session in March, 1880, in thus selecting persons to serve, if summoned, as grand and petit jurors in those courts, including that of the general sessions and that of Oyer and Terminer, had selected no persons of color or African race, but, on the contrary, had excluded them because of their race and color; that the prothonotary and clerk of the peace of the county had drawn from the list of those thus selected the grand jurors by whom the indictment against the petitioner was found, and the petit jurors by whom he was to be tried, and that persons of color and of African race, though otherwise qualified, had always been excluded from serving on juries, in the county and State, because of their race and color; that by reason thereof, the petitioner, in the finding of the indictment had been, and in the trial thereof would be, denied the equal protection of the laws; and further, that by the exclusion of all persons of color and African race from the grand and petit juries of the State, by force of its Constitution and laws, the petitioner was denied, and could not enforce in its judicial tribunals, the right secured to him by the act of Congress providing for the equal civil rights of citizens of the United States.

The Constitution of Delaware was adopted in 1831; and the counsel for the defendant, in presenting the petition, assumed that its limitation of the right of suffrage to white male citizens was still operative, notwithstanding the [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]], and that as white persons are there named as electors, only such were allowed to serve as jurors. But this view is clearly untenable. The [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]] took effect upon its adoption, and operated to strike out the word 'white' from the Constitution of Delaware; and such has been the uniform ruling of the courts of that State. The Court of Oyer and Terminer, accordingly, held that there was no law of the State forbidding the Levy Court to select persons of African race and color as jurors because of their race and color, if otherwise qualified; and further, that it did not appear that the grand and petit juries, though composed entirely of white persons, were so made up by the exclusion of colored persons on the ground of their race and color, or that the defendant was denied any right secured to him as a citizen of the United States through the selection of those panels. The application for a removal of the indictment to the United States Circuit Court was, therefore, denied. It is not necessary to justify this ruling by any extended argument, for it is held by a majority of this court that the removal was properly refused.

The defendant then moved to quash the indictment and the panel of grand jurors by which it was found, and the panel of petit jurors summoned for its trial, giving as reasons for the motion the action of the Levy Court in selecting persons to serve, if summoned, as grand and petit jurors, and the action of the prothonotary and clerk of the peace of the county in drawing the jurors from the list of those selected, and the consequent deprivation of the petitioner's rights, all of which are stated in the petition for the removal of the case. No additional affidavit was filed; but the attorney-general of the State waived this omission, and consented that the statements in that petition should be taken and treated as of the same force and effect in the consideration of the motion to quash as if presented by a separate affidavit. The motion was then heard, and after being retained under advisement for some days was denied, because, although in fact no persons of African race or color were on the panel either of the grand or petit jury, no evidence had been produced or offered by the defendant to prove his statement that the exclusion was by reason of their color or race, and the court could not accept such fact as established from the circumstance that no such persons were on either list or panel, nor from the unaided affidavit of the defendant; but held, that it should have been proved affirmatively by competent testimony outside of his own affidavit. This ruling constitutes, in the opinion of the majority of the court, reversible error.

It is obvious that the mere fact that no persons of the colored race were selected as jurors is not evidence that such persons were excluded on account of their race or color. The law only required one hundred 'sober and judicious' persons to be selected to serve as grand jurors, and one hundred and fifty such persons as petit jurors, out of the whole body of the county, and these numbers may have been selected without any other consideration than their merit and fitness to perform jury duty. There is no suggestion that the grand jurors by whom the indictment was found, or the petit jurors summoned for the trial, had not the prescribed qualifications, and were not 'sober and judicious' men. It would seem, when the law has been obeyed, as in this case, that something more than the mere absence of colored persons from the panels should be shown before they can be set aside. And the fact that colored persons had never, since the act of Congress of May 1, 1875, been selected as jurors may be attributed to other causes than those of race and color.

In Virginia v. Rives, which was before us at the last term, it was urged for the removal of the indictment against persons of the colored race from the State to the Federal court, that the grand jury by which they were indicted, and the jury by which they were to be tried, were composed wholly of persons of the white race, and that none of their race had ever been allowed to serve as jurors in the county of Patrick (where the indictment was found, and the trial was to take place), in any case in which a colored man was interested; but the court, speaking through Mr. Justice Strong, said that this statement fell 'short of showing that any civil right was denied, or that there had been any discrimination against the defendants because of their color or race. The facts may have been as stated, and yet the jury which indicted them, and the panel summoned to try them, may have been impartially selected.' 100 U.S. 313, 322. Upon this subject the court below said:--

'That none but white men were selected is in nowise remarkable in view of the fact-too notorious to be ignored-that the great body of black men residing in this State are utterly unqualified by want of intelligence, experience, or moral integrity to sit on juries. Exceptions there are, unquestionably, but they are rare, and so much so, that it is not often that more than one colored man appears upon a panel in the United States courts which have a whole State to select from; whereas in this case the selection was confined to a single county. And in support of the suggestion of unfitness, we have the fact that though the constitutional amendment and the legislation 'appropriate' to carry it into effect have been in force, the former for about fifteen years and the latter over five years, yet no instance has yet occurred where parties to a proceeding-and they are very often colored mem-have ever selected a man of African descent as a referee. This fact is not to be disregarded in assigning a cause for the exclusion of negroes from juries, if such exclusion could be shown to have been made. With our knowledge, as men of the State, of the African race in Delaware, and of the circumstance just referred to, it would be wholly unwarranted in us to infer exclusion for the mere reason of color, because our juries are, in point of fact, composed of white men alone; or to entertain a suspicion of such cause unless it had better support than the wholly unsupported affidavit of the defendant. To impute to the levy court a purpose to do otherwise than perform their duty by the selection of 'sober and judicious' persons to serve upon the juries, as the law requires, would be a wrong on our part upon the well-known principle that, in the absence of proof to the contrary, a public officer, discharging an official obligation or function, is to be presumed to have done it faithfully according to law.'

It also seems to me plain that the court below properly refused to accept as true the statements in the defendant's affidavit. If the unsupported statements of a party thus made could be taken as true, on a motion to quash, very few indictments would stand before the affidavits which would be offered. Here the affidavit was as to matters which could not possibly have been within the knowledge of the petitioner. However positive his averments, they must, therefore, be taken, like the averments as to the law of the State, as made upon information and belief only. It also imputed grave offenses to the officers of the Levy Court, if the act of Congress on the subject of jurors in State courts is valid. Under these circumstances, to accept as conclusive his statements would be-as was well observed by counsel-to reverse all the rules of evidence, overturn all orderly procedure in courts of justice, and contradict the settled maxims of ordinary human experience. It would be giving to his expression of opinion and belief, as to the criminal conduct of public officers, the force of positive proof.

After the decision of the motion the defendant applied for leave to produce the commissioners and the clerk and bailiff of the Levy Court as witnesses to establish his statements, and that subpoenas be issued for them. This application was denied on the ground that sufficient time had existed to produce such witnesses before the motion was heard, the court observing that 'application for leave to summon witnesses to support a motion which had been argued and refused because of want of proof, when sufficient time had existed for its production, was without precedent in the Court of Oyer and Terminer of the State, and, therefore, in this case, the motion must be treated as coming too late.' I may add to what is thus stated, that, so far as my knowledge extends, the application is without precedent in any court. Applications may be heard for a rehearing; but until a rehearing is had it is not permissible to call witnesses for the motion already decided. Besides this consideration, there was no affidavit, nor suggestion, by the defendant that the officers named would support his statement. His motion was simply for permission to make the experiment by calling them to the stand. The prothonotary and clerk of the peace were not shown to have had any knowledge on the subject; and the commissioners of the Levy Court could not have been required to answer as to the asserted fact that persons were excluded by them from the jury list on account of their race or color. If the law of Congress prohibiting such exclusion be valid, the commissioners by such action would have subjected themselves to penalties. And, whilst it is true that a witness may not claim exemption from answering questions where the answer might subject him to a criminal prosecution, yet it would be an unusual thing to require parties to be summoned upon a suggestion that they might be willing to criminate themselves and thus furnish support to a motion. The refusal to allow the defendant to make such an experiment with the commissioners, and to enter on an exploring expedition with the others named, does not appear to be a harsh ruling meriting animadversion, but one perfectly just and proper. And in this connection the statement of counsel of the defendant in their printed brief is not to be overlooked, that it was not in his power 'to produce any evidence of the intent with which the Levy Court excluded men of his race and color from the jury lists, other than the presumptive evidence already discussed,'-that is, such as arose from the fact that they had always been excluded from jury service; a statement which is equivalent to an admission that the right for which counsel now contend, had it been allowed to the defendant, would have been of no avail to him.

But erroneous as I deem the ruling of the majority of this court in the weight accorded to the unsupported averments of the defendant, as to matters not within his personal knowledge, the meaning given to the concluding clause of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]]]]]] presents a matter for consideration of far greater importance. True, the opinion only reaffirms the doctrine in the cases from Virginia decided at the last term. I thought the doctrine erroneous then, and with great deference to my associates, I must say, that after a careful and repeated perusal of their opinion, my conviction remains unchanged. The legislation of Congress, which requires persons of the colored race to be admitted to serve as jurors in State courts, is contained in the fourth section of the act of March 1, 1875, c. 114, 'to protect all citizens in their civil and legal rights,' which declares: 'That no citizen possessing all other qualifications, which are or may be prescribed by law, shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors, who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.'

Before the adoption of the Thirteenth, Fourteenth, and [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]s to the Constitution, no one would have pretended that Congress possessed any power to legislate with respect to jurors-grand or petit-in the State courts. Upon no one subject would there have been a more general concurrence of opinion than that their selection was a matter entirely of State regulation; that it was for the States exclusively to determine who should be liable to serve as jurors in their courts, what qualifications they should possess, and in what manner they should be selected. Indeed, it was competent for the States to dispense completely with juries, and to require all suits, civil and criminal, to be determined without their aid.

Of the three amendments, it is plain that the Thirteenth and Fifteenth have no bearing upon the selection of jurors. The Thirteenth prohibits slavery and involuntary servitude, except in punishment for crime, within the United States, or in any other place subject to their jurisdiction. It makes every one within all our broad domain, and wherever our jurisdiction extends, on land or sea, a freeman, with the same right to pursue his happiness as all others, and on like conditions. But it does not undertake to do anything more; it does not confer any political rights; it leaves the States with all their previous powers to determine who shall fill their offices and be intrusted with the administration of their laws. A similar provision was found in the constitutions of all the Free States, and it was never supposed that it impaired in any respect the sovereign right and power of the people of every State to determine to whom they would confide the trusts of government.

The [[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|[[Additional amendments to the United States Constitution#Amendment XV|Fifteenth Amendment]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]] only prohibits the denial or abridgment of the elective franchise to citizens by reason of their race, color, or previous condition of servitude. It excludes from the power of the State one ground of limitation upon the qualification of voters; it relates to no other subject. It is, then, to the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]]]]]] that the advocates of the congressional act must resort to find authority for its enactment, and to the first section of that amendment, which is as follows: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'

In the first clause of this section, declaring who are citizens of the United States, there is nothing which touches the subject under consideration. The second clause, declaring that 'no State shall make or enforce any law which will abridge the privileges or immunities of citizens of the United States,' is limited, according to the decision of this court in Slaughter-House Cases, to such privileges and immunities as belong to citizens of the United States, as distinguished from those of citizens of the State. If this construction be sound, and, restricted as it is, it has not been overruled by those who approve of a loose and latitudinarian construction of another clause of the same section,-it will not be contended that the privilege of persons to act as jurors is covered by the inhibition. But if a broader construction be given to the clause, such as was advocated by the dissenting judges in Slaughter-House Cases, the inhibition can have no application. The Constitution, previous to this amendment, declared that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,' and it was never supposed or contended that jury duty or jury service was included among those privileges and immunities. The third clause, which declares that no State shall deprive any person of life, liberty, or property without due process of law, has no reference to this subject. That is a provision found in all our State constitutions from the origin of the government, and is intended to protect life, liberty, and property from arbitrary legislation. It is upon the last clause of the section that the majority of the court are compelled to rely to sustain the act of Congress. 'No State shall deny to any person within its jurisdiction the equal protection of the laws.' What, then, is meant by this provision, 'equal protection of the laws'? All persons within the jurisdiction of the State, whether citizens or foreigners, male or female, old or young, are embraced in its comprehensive terms. If to give equal protection to them requires that persons of the classes to which they severally belong shall have the privilege or be subject to the duty-whichever it may be-of acting as jurors in the courts in cases affecting their interests, the mandate of the Constitution will produce a most extraordinary change in the administration of the laws of the States; it will abolish the distinctions made in the selection of jurors between citizens and foreigners, and between those of our race and those of the Mongolian, Indian, and other races, who may be at the time within their jurisdiction. A Chinaman may insist that people of his race shall be summoned as jurors in cases affecting his interests, and that the exclusion is a denial to him of the equal protection of the laws. Any foreigner, sojourning in the country, may make a similar claim for jurors of his nation. It is obvious that no such claim would be respected, and yet I am unable to see why it should not be sustained, if the construction placed upon the amendment by the majority of the court in this case be sound.

It seems to me that the universality of the protection contemplated by the clause in question renders the position of the majority of the court untenable. No one can truly affirm that women, the aged, and the resident foreigner, whether Caucasian or Mongolian, though excluded from acting as jurors, are not as equally protected by the laws of the State as those who are allowed or required to serve in that capacity. To afford equality of protection to all persons by its laws does not require the State to permit all persons to participate equally in the administration of those laws, or to hold its offices, or to discharge the trusts of government. Equal protection of the laws of a State is extended to persons within its jurisdiction, within the meaning of the amendment, when its courts are open to them on the same terms as to others, with like rules of evidence and modes of procedure, for the security of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; when they are subjected to no restrictions in the acquisition of property, the enjoyment of personal liberty, and the pursuit of happiness, which do not equally affect others; when they are liable to no other nor greater burdens or charges than such as are laid upon others, and when no different nor greater punishment is enforced against them for a violation of the laws. When this condition of things exists in a State, there is that equality before the law which is guaranteed to all persons within its jurisdiction. The amendment, as I said in Ex parte Virginia, 'secures to all persons their civil rights upon the same terms; but it leaves political rights, or such as arise from the form of government and its administration, as they stood previous to its adoption. It has no more reference to them than it has to social rights and duties, which do not rest upon any positive law, though they are more potential in controlling the intercourse of individuals. . . . This is manifest from the fact that when it was desired to confer political power upon the newly made citizens of the States, as was done by inhibiting the denial to them of the suffrage on account of race, color, or previous condition of servitude, a new amendment was required.' 100 U.S. 339, 368.

The position that in cases where the rights of colored persons are concerned it is essential for their protection that individuals of their race should be summoned as jurors, is founded upon the assumption that in such cases white persons will be prejudiced jurors. 'If this position,' as I said in the case cited, 'be correct, there ought not to be any white persons on the jury when the interests of colored persons only are involved. That jury would not be an honest or fair one, of which any of its members should be governed in his judgment by other considerations than the law and the evidence; and that decision would hardly be considered just which should be reached by a sort of compromise, in which the prejudices of one race were set off against the prejudices of the other.' Id. 369.

As I am unable to find any warrant in the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]]]]]] for the legislation of Congress interfering with the selection of jurors in the State courts, or to perceive, even if that legislation be deemed valid, any error in the ruling of the court of Delaware I am of opinion that its judgment should be affirmed.