811.623 Florida/10

The Secretary of State to the Italian Ambassador ( De Martino )

Excellency: I have the honor to acknowledge the receipt of your note of April 30, 1928, in further relation to a purported conflict between a statute of the State of Florida and existing treaty provisions between the United States and Italy in which you state that “the Italian Government are entitled to have treaties respected by the American Authorities, apart from actions that Italian subjects may maintain in the American Courts”.

In reply I have the honor to state that under the constitutional régime obtaining in this country the Federal courts are the appropriate forum for the determination of questions involving the interpretation of treaties and that these courts are clothed with the power to declare invalid legislation of the several States which in their estimation may be in violation of existing conventional engagements of the United States. In the absence of a judicial pronouncement, the Executive branch of the Federal Government is not in a position to propose the repeal of legislation enacted by one of the States which is considered to be in conflict with existing treaty provisions to which the United States is a party.

It is not perceived, however, that the rights of Your Excellency’s Government or Italian nationals under existing treaty provisions would suffer any prejudice through a determination thereof by the appropriate Federal judicial authorities of the United States. It is believed on the contrary that such a procedure—involving as it does a careful survey of the question, not only by the lower Federal courts but, through an orderly procedure of appeal, by the Supreme Court of the United States—affords to your Government the assurance that the matter will be given a painstaking and careful review by the agency of this Government best fitted to pass on questions of this character—which would seem to be primarily of a judicial nature.

It should be observed, finally, that while the procedure outlined of [Page 118] necessity contemplates the bringing of it suit by an individual Italian national in the Federal courts of this country, such an action is the only means whereby the matter can be tested in the courts. It would seem clear, however, that the private suit is only incidental to the major issue of determining the validity of legislation in apparent conflict with treaty provisions.

In view of the foregoing considerations, I have the honor to inform Your Excellency that since the appropriate authorities of the State of Florida have found themselves unable to recognize the validity of Your Excellency’s contentions in this case, this Department is not in a position, for the reasons recited above and in the Department’s note to you of April 8 [6], 1928, to take any further action in this matter until a final adjudication shall have been obtained in the appropriate courts of the United States.

Accept [etc.]

Frank B. Kellogg