Not a real photo of Raoul Berger – scroll down and click his name to see a real photo

Charles Jones and C. A. Cecil were Jehovah’s Witnesses from Mount Lookout, West Virginia. On June 28, 1940, they came to the nearby town of Richwood. Richwood’s dominant local industries relied on harvesting the high-quality (or “rich”) wood from local forests. Jobs working wood and coal helped swell Richwood to about 4,000 inhabitants. That represented a lot of doorbells to ring and souls to save. Simultaneously with spreading their spiritual message, Jones and Cecil wanted to get signatures on a petition against the Ohio State Fair, which had cancelled its contract to host a national convention of Witnesses.


Downtown Richwood, West Virginia, 2006

Under the dictatorial direction of their boozy but efficient leader, Joseph Franklin Rutherford, the Jehovah’s Witnesses had become a society of evangelizers. All members were required to spend time spreading Christian truth to their neighbors (in time which they spared from their day jobs). Basically, as many people as possible needed to be rescued from the diabolical world system, dominated by evil governments and the “racketeering” clergy of other religious groups. The end times were imminent, or had already arrived – the exact details changed with time, but the urgency of the situation did not change. Witnesses had to descend on communities like “locusts” – Rutherford’s term – and turn people to God’s ways.

The true nature of the current wicked system must be made clear in publications, speeches, and even phonograph records. Certain sinful behavior must be shunned. In 1935, Rutherford had made clear that saluting the U. S. flag was idolatry – Rutherford compared it to the Nazi salute. (To be fair, until the end of 1942, the American flag salute was uncomfortably similar to the Nazi salute – and German Witnesses were killed or put in concentration camps for their defiance.) Young Witness men must not sign up for the draft because all Witnesses – not just the leaders – were ministers and entitled to the draft law’s exemption for clergy.

In World War I, before Rutherford took over, the antiwar teachings of the Witnesses (then called Bible Students) had been so provocative that it was persecuted in many countries including the U.S. And as a new world war was underway, Rutherford had ratcheted up the confrontation between his group and the forces of mainstream American society. A new era of persecution was dawning as mainstream American fought back in often-ugly ways.

Jones and Cecil were picked up by the police, who took them to state police headquarters, where cops and members of the American Legion (a nationalistic veterans’ group, more militant at the time than it is today) interrogated them. Martin Louis (or Lewis) Catlette was a twofer, a Legionnaire and a deputy sheriff. This sort of overlap between American Legion vigilantes and law enforcement was common in the attacks on the Witnesses.

Catlette and others accused Jones and Cecil of being spies and Fifth Columnists and gave them four hours to get out of town. The two Witnesses returned to Mount Lookout, but came back to Richwood the next day, June 29, with seven more members of their sect.

Their enemies were waiting. The Legionnaires had searched the boarding house where Jones and Cecil had stayed, finding some very suspicious items, like maps (of homes the Witnesses intended to canvass), and literature about refusing to salute the flag or serve in the military. It was time to teach these subversives a lesson.

Catlette and his Legionnaire friends got the Witnesses together in the Mayor’s office, holding them prisoner there while Richwood Chief of Police Bert Stewart guarded the door. Catlette took off his badge, proclaiming that what he was going to do would be as a private citizen, not as a law officer.

A local doctor was among the Legionnaires, and he was not very mindful of the Hippocratic Oath. He brought some castor oil, which the mob forced the prisoners to drink.

Castor oil was then considered a useful medicine for intestinal distress if administered in small doses. If given in large doses, as in this case, it induces severe diarrhea. One of the Witnesses, who got an extra dose because he tried to resist, had bloody urine.

Forced dosing with castor oil had a notorious history. Mobs in Fascist Italy often poured castor oil down the throats of political opponents or people suspected of anti-social activities, as a humiliating lesson for anyone who dared resist fascism.

The Witnesses’ ordeal was not over. Catlette and his associates tied the Witnesses’ left arms together and paraded their prisoners through the streets and tried to force them to salute the U. S. flag (with their free arms). Then the vigilante mob marched the Witnesses to their cars, which had been vandalized, and ordered them out of town again.

Incidents like this were erupting throughout the country. The Germans had just overrun France and the Low Countries, and the public was on high alert for “Fifth Columnists” – Nazi agents undermining morale in preparation for an invasion. The Witnesses aroused suspicion because of their aggressive proselytizing, their vehement denunciation of the government (and every other religion but their own), and their refusal to salute the flag. The U. S. Supreme Court had just issued an opinion that public schools could force Jehovah’s Witness pupils to salute the flag (an opinion the Court would overturn three years later, saying compulsory flag-salutes violated the Witnesses’ freedom of religion). As in many countries, both Allied and Axis, the Witnesses were considered as a subversive influence and persecuted as such.

Attorney General Francis Biddle, in 1941, publicly denounced the “cruel persecution” of the Witnesses, but his Justice Department didn’t seem to be acting against the persecutors. Indeed, the feds didn’t mind doing some persecuting of its own, prosecuting Witnesses for resisting the draft.

(And after Pearl Harbor, there was the persecution of Japanese-Americans, as well as of the prosecution of certain critics of the war – but we’re getting away from the subject, which is how concerned the U. S. Justice Department was about the rights of minorities.)

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You might say that the Goddess of Justice was disarmed

In West Virginia, the local federal prosecutor, Lemuel Via, recommended against bringing charges in the Richwood case. The recently-formed Civil Rights Section of the Justice Department pressed for prosecution. By 1942, the Civil Rights Section had won out, and Via was instructed to take the case to the grand jury. Via asked the Justice Department to send one of its lawyers to assist him. This would show “that this case was being prosecuted by the Department of Justice, rather than the United States Attorney.” In other words, Via wanted to signal to the community that if it were up to him, he wouldn’t be harassing the local patriots simply for giving the Witnesses what they deserved.

So the Justice Department sent one of its recent hires, Raoul Berger, to help Via out and take the responsibility off of him.

Cue the scene-shifting special effects.

Raoul Berger was born in 1901 in a town near Odessa, now in Ukraine but then in the Tsarist Russian Empire. The Berger family was Jewish, and there was lots of anti-Semitic agitation in the empire. Also, according to Raoul’s later recollection, his father Jesse predicted (correctly) an impending war between Russia and Japan.

So it was time to emigrate. Jesse came to the United States in 1904, initially, perhaps, without his family. In 1905, Russia experienced the predicted war with Japan, a revolution, and an anti-Jewish pogrom in Odessa.


A Jewish shop destroyed in the Odessa pogrom, 1905

This may have reinforced Jesse’s wish to bring his wife Anna, little Raoul, and his sister Esther, to the United States, which Jesse did no later than 1907 (if he had not done it already).

Jesse worked as a cigarmaker in the West Side of Chicago. He wanted his son to study engineering, but Raoul was taken with music. Raoul acquired a violin, learned some gypsy tunes, and began more formal musical studies under a private tutor. After he got out of high school, Raoul went to New York City to study at the Institute of Musical Art, now Julliard. His teacher was Franz Kneisel, a rigorous and stern instructor. Raoul later reflected on how, in studying the violin, he learned “patience and rigorous attention to detail,” which stood him in good stead throughout his life.

After an unsuccessful sojourn in Berlin to study under Carl Flesch, Berger came back to New York to finish his studies with Kneisel. Then it was on to Philadelphia to play violin for the Philadelphia Orchestra. The conductor was Leopold Stokowski, whom Berger recalled as vain and insufferable, albeit a genius.

Leopold Stokowski

Berger lasted a year under Stokowski, and then went to Cleveland to become second concertmaster of the Cleveland Orchestra, under Artur Rodzinsky.

After two years at this job, Berger got a position in Cincinnati as associate concertmaster to the conductor Fritz Reiner. With three others in the orchestra, Berger formed the Cincinnati String Quartet. In Berger’s telling, Reiner was dictatorial without the compensating advantage of genius like Stokowski.

Fritz Reiner

Around this time, Berger stopped being a professional musician and started looking around for another line of work. Berger’s son Carl, in a brief account of his father’s musical career, suggests that there may have been financial considerations: Berger’s new wife was the daughter of a big-shot doctor, and Berger may have wanted to give his bride a better lifestyle than a Depression-era violinist could afford. By Berger’s own account, the problem wasn’t money, but the dictatorial conductors he worked under, which led him to reconsider his musical career choice.

After the sight of a dissecting room scared him away from medicine, Berger went to law school at Northwestern and Harvard. At Harvard he was a student of Felix Frankfurter, who remained as a mentor figure after Berger’s graduation.

Felix Frankfurter


With excellent credentials, the new attorney tried to get a position in a big law firm, but none of them would hire him because he was Jewish. The firms he applied to had either filled their Jewish quota, or their quota was zero. Not even the intervention of Felix Frankfurter helped.

Fortunately, the head of the Securities and Exchange Commission (SEC) was a friend of the dean at Northwestern, so Berger began working as a government attorney. The Department of Justice hired Berger away from the SEC, and now they dropped the Richwood castor-oil case in his lap. Berger later said, probably correctly, that his bosses didn’t like this case, and expected to lose, so they handed it off to Berger who was the “low man on the totem pole.”

OK, fine, here’s the real Felix Frankfurter

Berger took the case to the grand jury. The Jehovah’s Witness victims testified about what happened to them. In a memorandum, Berger described how the grand jurors responded with hostile questions “about the particulars of their religion, their refusal to bear arms, their invasion of Richwood in search of ‘trouble.'” No indictments were forthcoming.


Since the grand jury refused to indict Catlette and Stewart, felony charges were not an option. Instead, the prosecutors filed an information charging Catlette and Stewart with the misdemeanor of denying the Witnesses’ civil rights “under color of law.” By seizing and mistreating the Witnesses, the charges said, the two lawmen had violated the Witnesses’ rights under the Fourteenth Amendment of the U. S. Constitution, including “the exercise of free speech”…

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…and the right “to practice, observe and engage in the tenets of their religion.”

"Religious Liberty (1876)," by Moses Jacob Ezekiel, near the National Museum of American Jewish History, PhiladelphiaU. S. Supreme Court precedent at the time held that the First Amendment rights of free speech and free exercise of religion were also protected by the Fourteenth Amendment, and thus could not be violated by state officials. The Supreme Court had exempted the states from most of the Bill of Rights, but not from these key provisions.

(The charges also said that the defendants’ behavior had violated due process and equal protection, which are specifically protected by the Fourteenth Amendment.)

The trial was held in early June 1942 in Charleston, WV. Federal District Judge Ben Moore presided. In his argument to the jury, as Berger later summarized it, “I played one string” – American boys were overseas fighting Mussolini, and these defendants were engaging in Mussolini-style behavior right here in the United States.

The jury gave its verdict: Both defendants were guilty.

Catlette was sentenced to a year in prison and a $1,000 fine. Stewart got away with a $250 fine, which he paid. Catlette appealed his conviction to the federal Fourth Circuit court. Berger helped argue the appeal on the government’s behalf.

While Berger was fighting to keep Catlette in prison, the University of Chicago Law Review published an article Berger had written in his private capacity. The U. S. Supreme Court had just given an opinion saying the public had a broad right to criticize judges, a right which neither the federal government nor the states could take away. In his article, Berger indicated that he was sympathetic to a broad vision of free speech, but – in an elaborate historical analysis – Berger argued that the historical meaning of the First Amendment allowed judges to punish their critics.

Speaking as a good New Deal liberal, Berger was glad that the Court was no longer imposing economic liberty on the country in the name of constitutional rights. These discredited conservative precedents (as he saw them) had led to “a generation of sweated labor and unchecked industrial piracy” from which the country was just recovering. But now that New Dealers controlled the Supreme Court, would they impose their left-wing activism on the constitution the way earlier courts had (allegedly) practiced right-wing activism? ” [I]t is easier to preach self-restraint to the opposition than to practice it oneself,” Berger reminded leftists.

What the Supreme Court ought to do, wrote Berger, was adhere strictly to the historical meaning of the Constitution, even if this sometimes produced results leftists disliked. Some advocates of judicial activism said judges should adapt the Constitution to modern circumstances. But “an ‘unadapted’ Constitution may be the last refuge of minorities if a national Huey Long comes to power.” (To Berger, it was Long, not FDR, who served as an example of a tyrannical populist demagogue.)

And in a foretaste of things to come, Berger included a brief footnote in his article noting the Supreme Court’s inconsistency on whether the First Amendment even applied to the states.

For now, though, Berger was seeking to apply the First Amendment to the states by locking up Martin Catlette.

In January 1943, the Fourth Circuit upheld Catlette’s conviction, rejecting Catlette’s claim that by removing his badge he had turned himself into a private citizen and was not acting “under color” of state law as the charges against him alleged.

The judges made short work of Catlette’s efforts to dodge responsibility:

We must condemn this insidious suggestion that an officer may thus lightly shuffle off his official role. To accept such a legalistic dualism would gut the constitutional safeguards and render law enforcement a shameful mockery.

We are here concerned only with protecting the rights of these victims, no matter how locally unpalatable the victims may be as a result of their seeming fanaticism. These rights include those of free speech, freedom of religion, immunity from illegal restraint, and equal protection, all of which are guaranteed by the Fourteenth Amendment.

The conviction of Catlette and Stewart represented the only successful prosecution in the country of anti-Witness vigilantism.

Catlette served his sentence in the Mill Point, WV, federal prison camp. As befitted someone who had only been convicted of a misdemeanor, Catlette did not live under a very harsh prison regime. Maureen F. Crockett, daughter of the prison’s parole officer, later wrote:

The minimum-security prison on top of Kennison Mountain had no locks or fences, and minimal supervision. Inmates stayed inside the white posts spaced every 40 feet around the perimeter. Escape was as easy as strolling into the nearby woods, but the staff took a head count every few hours. During the [twenty-one] years it was open, the prison had only 20 escapes.

Local lore says so few prisoners left because they thought the local woods were haunted.

For whatever reason, Catlette did not run off. He served eleven months of his twelve-month sentence before being paroled (and the court excused him from paying the fine). During his incarceration, he probably had the chance to meet some of the convicted draft resisters who were entering Mill Point at this time, including Jehovah’s Witnesses.

Berger continued his career as a government lawyer. His jobs included working at the Office of the Alien Property Custodian.

After his stint in government service, Berger went into private practice.

In 1958, Berger was devastated by the death of his wife. He considered what to do with the rest of his life. Perhaps, he thought, he could return to being a musician. He went to Vienna and gave a violin performance.

To illustrate the idea of Vienna, here are some Vienna sausages

As Berger told it, he was deterred from resuming his musical career when he read a review in the Vienna press, saying that he played the violin very well…for a lawyer.

Berger began a new career as a law professor. Eventually, his research would lead him to the conclusion that the states did not have to obey the Bill of Rights.

How would Martin Catlette react if he knew that one of the prosecutors who sent him to prison for violating freedom of speech and religion would later claim the states were exempt from the Bill of Rights?

But before Berger got to that point, he had a date with destiny in the form of a crooked President.


Works Consulted

Cecil Adams, “Did Mussolini use castor oil as an instrument of torture?” A Straight Dope classic from Cecil’s store of human knowledge, April 22, 1994, message boards > Surnames > Beck > “Not sure where to begin – Helen Theresa Beck,”

Raoul Berger, “Constructive Contempt: A Post-Mortem,” University of Chicago Law Review: Vol. 9 : Iss. 4 , Article 5 (1942).
Available at:

_________, The Intellectual Portrait Series: Profiles in Liberty – Raoul Berger [2000], Online Library of Liberty, (audio recording)

Robert K. Carr, Federal Protection of Civil Rights: Quest for a Sword. Ithaca, NY: Cornell University Press, 1947.

Maureen F. Crockett, “Mill Point Prison Camp,”

Bill Davidson, “Jehovah’s Traveling Salesmen,” Colliers, November 2, 1946, pp. 12 ff.

Robert Freeman, The Crisis of Classical Music in America: Lessons from a Life in the Education of Musicians. New York: Rowman and Littlefield, 2014.

“Italian Fascists and their coercive use of laxative as political weapons,”

James Penton, Apocalypse Delayed: The Story of Jehovah’s Witnesses (Third Edition). Toronto: University of Toronto Press, 2015.

Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. Lawrence: University Press of Kansas, 2000.

Richwood, West Virginia – History,

Chuck Smith, “Jehovah’s Witnesses and the Castor Oil Patriots: A West Virginia Contribution to Religious Liberty,” West Virginia History, Volume 57 (1998), pp. 95-110.

_________, “The Persecution of West Virginia’s Jehovah’s Witnesses and the expansion of legal protection for religious liberty,” Journal of Church and State 43 (Summer 2001).

Rick Steelhammer, “Whispers of Mill Point Prison,” Charleston Gazette-Mail, May 4, 2013,

“Mill Point Federal Prison and the Bigfoot,” Theresa’s Haunted History of the Tri-State, January 5, 2015,

Note – There’s a Martin Lewis Catlette (1896-1965) buried in the Richwood Cemetery. I can’t say for sure if this is the same person as the deputy Sheriff (the appeals court gives the deputy’s middle name as “Louis”). The person in the cemetery seems to have served in the Navy in both world wars, and his wife died in 1943, the year that the deputy would have gotten out of prison. If this is the same person as the deputy, I would be able to add a paragraph about the widower, newly freed from prison, soothing his grief by returning to military service.