occupied and actually served in all its parts by another line, would, if running parallel with and at a distance of 30 or 40 miles from the original line, and bidding for a share of its traffic, be clearly regarded as in the neighbourhood of and detrimental to the established line. On the other hand, a railway separated for instance from another by a mountain range, could not be considered as in the neighbourhood of such other line, even if within 10 or 15 miles of it. Accordingly, objections to the contemplated line on the ground that it would be in the neighbourhood of and parallel with the existing railway cannot in the circumstances of the case be said to be unreasonable. Manifestly a railway that is near enough to another line to enter into competition with such other line, must be regarded as in the same neighbourhood.
Secondly. It should be pointed out that assertion is not demonstration. It was, it is true, asserted earlier in the letter under examination, that the proposed line would not be competitive with or detrimental to the existing railway. Not only was that assertion wholly unsupported, except by the inaccurate statement that no trade went eastward from the Fakumen region to districts operated by the existing system, but was contradicted by the suggestion as to the necessity of the new line in the commercial interests of Newchwang. The assertion is, moreover irreconcilable with the statement of Sir A. Hosie, which has already been quoted.
Thirdly. To say that in no country in the world could the vested interests of a railway preclude the construction of another line within a distance of 35 miles is to say more than can be substantiated. Even in China at least one instance in direct contradiction of that statement actually exists. In 1898 the Russo-Chinese Bank entered into a contract with the Chinese authorities concerning the construction of the Chengting-Taiyuan Railway. Article 5 of that contract reads as follows:-
"During the whole thirty years and or while the loan is unredeemed, the high authorities of Shansi shall, at the request of the Company, interdict the construction of another railway or other mechanical means of transport between Liuliu (Chengting) and Taiyuan, as such would be detrimental to the interest of this railway."
Later in the same year the Peking Syndicate signed an Agreement with the Shansi Bureau of Trade, for mining purposes, iron works and transporting mine products of all kinds in the Province of Shansi. Having regard to the engagement above quoted it was provided in Article 17 of the Peking Syndicate Agreement:-
"With reference to the Chengting to Taiyuan Railway, for the construction of which the Bureau has borrowed capital from others, the Peking Syndicate, to avoid disputes, shall not construct any railway within 100 li on each side of it."
Aside from this concrete case, it may be pointed out that in a country where for centuries produce in large quantities has been transported over long distances by men and beasts, 35 miles is certainly well within the radius of competition for parallel lines of railway.
But, it should be added, the distance between the existing and proposed lines is, in fact, considerably less than 35 miles: From Hsinmintun to Mukden is 32 miles; from Fakumen to Tiehling 27 miles; and from Shintaitza on the South Manchurian line to the nearest point on the proposed line is only 24 miles.
Fourthly. The pronouncement that the Peking Agreement of 1905 was violative of Article 4 of the Treaty of Portsmouth, and opposed to the pledge given by Japan to the Powers, is a statement that the Newchwang Chamber of Commerce was not competent to make, and one which that body would never have made, if it had given due consideration of the question. The Treaty of Portsmouth was between Japan and Russia, and if Japan has concluded engagements with other Powers inconsistent with that Act, it is for Russia to call her to account. The Peking Agreement was concluded with China, and the Chinese Plenipotentiaries had the Treaty of Portsmouth before them when negotiating that Agreement. Accordingly it may be assumed that China no less than Japan considered that Agreement as entirely reconcilable with the Portsmouth Compact. The only pledge that Japan has given to the Powers is the pledge regarding the open door in China, which has equally been given by the other Powers-America, Germany, France, Great Britain, and Russia. Those Powers have all been parties to, or have supported in favour of, their subjects and citizens, Railway Concessions in China in which appear stipulations similar to, and equally comprehensive with, the provisions of the Peking Agreement above mentioned. Thus in the Agreement with the American China Development Company of the 13th July, 1900, for the construction of the Hankow-Canton Railway line, it was provided-
That, without the express consent in writing of the Director-General and the American Company, no other rival railway detrimental to the business of the same is to be permitted, and no parallel roads to the Canton-Hankow line are to be allowed to the injury of the latter's interest within the area served by the Canton-Hankow main line or branch lines.
In the Agreement of the 9th July, 1903, with the British and Chinese Corporation (Limited), for the construction of the Shanghae-Nanking line the same stipulation, mutatis mutandis, appears.
The Canton-Kowloon Railway Agreement of March 1907 between the Wai-wu Pu and the British and Chinese Corporation (Limited) contains the following :-
It is further understood that the Chinese Government will not build another line competing with this railway to its detriment.
We have already seen the Russo-Chinese Agreements regarding the Shankaikwan-Yingkow-Hsinmintun and the Chengting-Taiyuan lines, as well as the Anglo-Chinese Shansi engagement, and it will be sufficient, in concluding this branch of the question, to call attention to the fact that Germany, in virtue of her Kiaochow engagements with China, claims the exclusive right of railway exploitation in the Province of Shantung. It was because of this claim that the construction of the Tientsin-Chinkiang Railway became in part a British and in part a German undertaking.
The last point in the letter of the Chairman of the Newchwang Chamber of Commerce, which requires examination, is the statement that the territory to the west of the Liao Ho was during the Russo-Japanese war, specifically proclaimed by China and officially recognized by the belligerents to be neutral territory, and consequently, even if it be assumed that the undertaking in question was valid, that undertaking could only have had application to the territory which was within the area of hostilities, and which furnished the cause of the war, and was the subject of the Treaty.
In making that statement the author of the letter, in his partisan zeal in defence of the interests of Newchwang, forgot his history as well as his geography.
The region through which the projected line was to run is in Manchuria, and was as much the cause of the war and the subject of Treaty adjustment as any other portion of the three provinces. Hsinmintun and Fakumen were opened by the Peking Treaty of 1905, and the Hsinmintun-Mukden line was one of the questions disposed of by that Treaty.
China specifically proclaimed that her neutrality extended to those localities unoccupied by belligerent troops. The region in question was throughout the war so occupied by one or the other of the belligerents.
Japan officially recognized as neutral Chinese territory not occupied by Russia. Russia officially declared the following area to be outside the neutral territory :-
A portion of the region situated on the right bank of the Liao Ho, the boundaries of which are formed by the Liao Ho by the railway line Yingkow-Kaopantze; afterwards by the railway line to a point where this line crosses an affluent of the Liao Ho, the Liou Ho (a little south of Hsinmintun), and finally by the said affluent the Liou Ho as far as the frontier of Mongolia.
On the ground, therefore, of historical precedents, no less than reasonable precaution, the action of the Japanese Government in interposing a veto against the construction of the projected line cannot in justice be condemned.
The Newchwang Chamber of Commerce, as is seen from its Resolution, places great reliance on Article 4 of the Treaty of Portsmouth. Accordingly it may be explained that a measure which is injurious to one Power cannot fairly be regarded as a general measure common to all countries.
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