The  evil  which  produced  the  prohibitory  clause  in  the  Constitu-
tion of  the  United  States  was  the  practice  of  the  States  in  making
bills  of  credit,  and  in  some  instances  appraised  property,  "a  legal
tender."  If  the  notes  of  the  State  Banks,  therefore,  whether  char-
tered or  unchartered,  be  made  a  legal  tender,  they  are  prohibited;
if  not  made  a  legal  tender,  they  do  not  fall  within  the  prohibitory
clause.  The  No.  of  the  "Federalist"  referred  to  (44)  was  written
with  that  view  of  the  subject;  and  this,  with  probably  other  contem-
porary expositions,  and  the  uninterrupted  practice  of  the  States
in  creating  and  permitting  banks  without  making  their  notes  a  legal
tender,  would  seem  to  be  a  bar  to  the  question,  if  it  were  not  inex-
pedient now  to  agitate  it.
A  virtual  and  incidental  enforcement  of  the  depreciated  notes
of  the  State  Banks,  by  their  crowding  out  a  sound  medium,  though
a  great  evil,  was  not  foreseen;  and  if  it  had  been  apprehended,  it  is
questionable  whether  the  Constitution  of  the  United  States,  which
had  many  obstacles  to  encounter,  would  have  ventured  to  guard
against  it  by  an  additional  obstacle.
>  LetUfs  and  other  Writings  of  James  Madison^  IV,  i6a


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496     RECORDS  OF  THE  FEDERAL  CONVENTION

CCCLXXVI.   James  Madison  to  Theodore  Sedgewick,  Jr.*

Montpr.  Feb.  12,  1831

You  ask  whether  Mr  Livingston  (formerly  Governor  of  N.
Jersey)  took  an  active  part  in  the  debates  (of  the  Fedl  Convention
of  1787)  and  whether  he  was  considered  as  having  a  leaning  towards
the  federal  Party  and  principles;  adding  that  you  will  be  obliged
by  any  further  information  it  may  be  in  my  power  to  give  you.
