Page:Harvard Law Review Volume 5.djvu/359

343 THE SUGAR BOUNTIES. 343 1842, and under the war tariffs of 1861, 1867, 1874, and 1883 (though the acquiescence has not been without periods of successful opposition), the attorney-general argues that indirect, i.e., "pro- tective," bounties area "public purpose." (Loan Association v. Topeka, 20 Wall. 655, p. 664.) It may be conceded that the in- creases of price on domestic goods caused by a " protective " tariff are substantially a bounty to the domestic manufacturer, and that in case of a prohibitory tax the distinction between " pro- tection " and "bounty " is extremely slight. But it may be noted that so good a constitutional authority as Madison (4 Elliott's De- bates, 2 Phila. ed. 1876, 525, 526) held that a "protective" tariff was constitutional, and a bounty beyond the power of Congress. Judge Hare (1 Const. Law, 244) regards this as absurd, and suggests that Whether money shall be raised by taxation and then laid out in bounties, or purchasers shall be compelled to pay a higher price to manufacturers than they would have to give abroad, would seem to be merely a question of form. With all respect to the authority of Judge Hare, there seems reason to believe that Madison is right. In the case of the bounty, the direct object is a private benefaction. In the case of State statutes, this would be void ; for the public benefit is strictly incidental. In the case of all "protective" taxes, the statute under which they are imposed is ostensibly to raise revenue. 1 Even the Act of October 1, 1890, called the " McKinley Bill," of which the Committee on Ways and Means in their report (Report No. 1466, Fifty-first Congress, first session) say, "The general policy of the bill is to foster and promote American production and diversification of American industry," styles itself "An Act to reduce the revenue and to equalize the duties upon imports, and for other purposes." The direct, apparent purpose of all these Acts is to raise revenue — an unquestioned public purpose. Any indirect bonus taken, by the arrangement of the schedules, from the consumers of certain articles, and transferred to their pro- ducers, is a purely incidental purpose. In adjusting its taxes, Congress is exercising an undoubted power. In so doing, it may benefit some industries and crush others. But these results are incidental, even if intentional, and the remedy, if any is needed, 1 See, however, 1 Stats, at Large, 24.