Burton act, which expired on March 4, 1913, since which time. there has been no Federal control of the diversion of the waters of Niagara River, unless the permits issued under the Burton act are still valid, which I do not believe.

"I believe it to be incumbent upon the State of New York to act promptly with a view to protecting the scenic grandeur of the Niagara River and its navigability. This the State may do in its sovereign right and capacity; and this the State should do in view of the fact that the Burton act has expired and that express Federal control over the diversion of the waters from the river has thereby ceased.

"I believe it to be the duty of the State to recognize the provisions of the treaty between this country and Great Britain which prohibits the diversion on the American side of the river exceeding 20,000 cubic feet a second. It is, indeed, probable that the limitation should be restricted to that established by the Federal Government in the Burton act, namely, 15,600 cubic feet a second. At least, no diversion should be permitted, I believe, beyond that amount until a thorough examination of the matter indicates that the beauty of the Falls would not be impaired by a diversion of a larger quantity of water.

"Whether or not the companies at present using the waters of the Niagara River without compensation must be restrained from so doing or whether or not the franchises heretofore granted by the State may be rescinded are matters that may be attended to hereafter in the courts. Legislative action, however, I believe to be imperative at this time, along the lines suggested above.

"It may not be wise for the State at this time to take any action that would adversely affect the property interests that have been acquired under permits heretofore granted. In view of the fact, however, that these companies have received these enormous benefits without compensation, I suggest the advisability of imposing a special franchise tax upon the franchises received, or upon the profits of the companies, until such time as the State shall have adopted a policy of dealing with the surplus waters of navigable streams." *

On April 16, 1913, Hon. Robert F. Wagner introduced in the Senate a bill "to limit the diversion within the State of New York of the waters of Niagara River above the falls of Niagara for power purposes and to define the volumes which may be so diverted at certain points and to forbid diversions in certain cases and to prevent unlawful diversion and structures and making provision for the enforcement of this act." The bill proposed to limit the diversion by the Niagara Power Co. to 8,600 cubic feet per second and the diversion by the Hydraulic Power Co. to 6,500 cubic feet per second. The bill, however, failed to pass.

The Bearing of the Indian Treaty on the Subject.

In view of the foregoing interesting legal question concerning the relative rights of the United States Government and the New York State Government to the control and use of the bed and the waters of the Niagara River and the right of the Legislature of the State of New York in years past to make grants of land under the water of Niagara River to various individuals and corporations, the argument recently advanced in pamphlet form and newspaper article by George P. Decker, Esq., Assistant Counsel of the New York State Conservation Commission, to the effect that the title to the bed of the Niagara River vests in the Federal Government, possesses no little interest. Following is an extract from Mr. Decker's argument, beginning with the Indian title:

"The Senecas in the seventeenth century held all the Niagara country easterly of the river, and held the islands. They suffered the French to erect a military post on Lake Ontario commanding the entrance to the river. In 1760 the British drove out the French. In June, 1763, the British, without leave of the Senecas, opened a roadway up the river, and John Stedman attempted to monopolize the portage. For these offenses came Seneca vengeance, swift and terrible, at Devil's Hole.

"The following spring Sir William Johnson, Crown Agent to the Indians, made peace with them, beginning with the Senecas. He asked for a cession of the portage and drafted one ceding to the Crown full rights in both frontages along the river from Lake Ontario up to the Great Fall. The Senecas were then powerful, and so were their brethren and allies. The Senecas came to Johnson Hall, but did not agree to the articles as prepared. They desired modifications, and asked for them. Sir William yielded and penned a proviso that the lands should always be appropriated to his Majesty's sole use as follows:

"Article III. They cede to his Majesty and his successors forever, in full right the lands from the Fort of Niagara, extending easterly along Lake Ontario about four miles, compre

"Agreed to, provided the tract be always appropriated

hending the Petit Marais, or landing place, and running from that southerly about fourteen miles to the creek above the Fort Schlosser, or Little Niagara, and down the same to the river or strait and across the same, at the great Cataract; thence northerly to the banks of Lake Ontario, at a creek or small lake about two miles west of the fort; thence easterly along the banks of the Lake Ontario and

to his Majesty's sole use.

* New York Times, January 6, 1913.

across the river, or strait, to Niagara, comprehending the whole carrying place with the lands on both sides the strait and containing a tract of about fourteen miles in length and four in breadth.'

By that proviso we must believe that the Senecas intended only to grant the British a use of the stream and its banks for the King's armies and ships and for forts, public roadways and wharves. They could have known of no other uses practical by pale-faced Kings, and these uses would mean, as the chiefs must have believed, preservation at the portage of the demand for the labor at which Indians were so adept, and mean security for them in enjoyment of their ancient rights of portage around the falls. Only four months later Sir William accepted from the Senecas, or a few of them, a treaty reciting a supplemental cession covering the portage from the Great Fall up-stream, but not as private property.'

"New York by the Revolution and under the Treaty of Paris took such right and title as Great Britain held in Niagara, and no more, and then by her own Constitution New York assumed to protect, as the British Crown had done, the property interests of the Indians even as against herself.

"In 1779 Sullivan's raid scattered the Senecas and he destroyed their homes. The Seneca copy of the Niagara cession of April, 1764, was very probably lost at that time. The British agents had already retired from the Colony, and their records were buried or removed. Little knowledge on this side of the lakes, and perhaps of the Atlantic, of the qualified nature of the British right along the river survived the generation of 1764, although the general location of the land lines of the cession remained known at Niagara.

"In 1802 New York bought of the Senecas the frontage above the falls extending from their first cession south as far as Buffalo Creek, but the land ceded stopped short along the west at the shore, precisely as the early Chippewa cession of the other side to the British had stopped. That the terms used in that cession to the State would not carry Indian rights in the bed and waters of the river must have been known to Governor Clinton, for the great lawyer, James Kent, officiated at the execution of the cession. He understood the law and surely pointed out the force of the ceding clause. The Seneca cession of the Niagara Islands to the State in 1815 carried the islands under full title, but nothing

more.

"The Federal Constitution put into the hands of the Federal Congress the administration over Indian rights, even to the exclu

sion of the States, as well as the paramount control over all uses of navigable waters available to inter-State or foreign commerce afloat or floatable thereon.

"The Federal Congress then, exercising the dual power, may join forces with New York in extending such future administration over Niagara as will preserve its scenic grandeur and secure, also, to the State at large the direct benefit from use, either governmental or private, of the surplus hydraulic utilities of the New York side of this river. The benefit of these natural advantages within her bounds, New York may justly claim as against her sister States. The United States conceded long ago to New York, and more recently to Illinois, the less obvious right to wholly divert waters from the basin of the Great Lakes for the needs of State canals, for public benefit. New York, at her considerable and sole expense, has redeemed her shore line at the Falls of Niagara and opened it to all people. She has maintained her canals unaided and served without toll the commerce of the Nation.

"But let no good citizen of the United States forget his obligation to the Senecas of 1764 for standing firm in their refusal to bestow a merchandise title to the Niagara and its banks upon the British Crown. Nor let him forget his obligation to the equally sagacious Senecas of 1802 and 1815, Red Jacket and Farmer's Brother and the others, who rounded out that good work by retaining an Indian right in the river bed above the crest of the Great Fall. A fitting memorial of these faithful guardians of Niagara should stand within sight of it on soil of the United States.

"Thus did this natural treasure pass under the governmental protection of the two great English-speaking peoples. With that power goes the duty of beneficent public service on the part of both. To no other generation had the opportunity meant so much. This duty of both peoples is as continuous and indivisible as the ceaseless flow of this mighty river reflecting no midstream partition between nations."

A Bill to Dry Up the American Fall.

On February 6, 1913, the Hon. George Geoghan of Buffalo, introduced in the Assembly, and on February 12, the Hon. Samuel J. Ramsperger of Buffalo, introduced in the Senate, a bill " granting to A. F. Eells and others, the right to construct a dam across the Niagara river at Goat Island and exercise certain other rights in respect of such river, Niagara Falls and adjacent lands, and

the transmission of electricity." The bill permits the grantees "to construct a temporary dam from the southern end of Goat Island at Niagara Falls; said dam to extend to the main land of New York, for the purpose of diverting the Niagara River and drying the American Falls during the construction of a power house beneath said falls; also the right to remove the loose stone at the foot of said falls and to wall up and secure the crest of said falls against erosion or recession; also the right to build and maintain and operate a power house beneath said falls for the purpose of generating electricity; also the right to transmit such electricity across the State land to the land of the City of Niagara Falls, thence to other parts of the State."

As such construction would be within the State Reservation of Niagara and a violation of the intent and purpose of the Reservation, we express the confident hope that the Legislature will not countenance the measure. *

CENTENNIAL OF BATTLE OF LAKE ERIE.

Pursuant to concurrent resolution No. 23 of the Legislature of 1910, a commission, entitled Perry's Victory Centennial Commission was appointed by the Governor to arrange for the participation of this State in the celebration of the 100th anniversary of the battle of Lake Erie which was fought September 10, 1813.

On January 1, 1913, the Hon. Samuel J. Ramsperger of Buffalo, introduced in the Senate, and on January 6, the Hon Edward D. Jackson of Buffalo, introduced in the Assembly bills appropriating $200,000 and $150,000 respectively for the purposes of the celebration, and authorizing the contribution of at least $75,000 and $50,000 respectively of the amount appropriated, toward the construction of a monument on South Bass Island, in Put-In Bay, Ohio, in memory of the officers and men killed in the battle. In the course of the session the two bills have been harmonized, the amount of the appropriation being fixed at $150,000.†

The erection of a monument to mark the burial place of the officers who fell in the battle of Lake Erie is most appropriate,

The bill failed to pass.

†The bill passed and became chapter 190 of the laws of 1913.