In all governments fear is recognized as one of the grounds for the enforcement of law. In even the freest nations and under the highest form of civilization the public opinion that administers law makes its demand partly in the interest of essential right, partly with the instinct of self-preservation against the forces of evil, and partly for the punishment of wrong. Punishment in itself is not reformatory; it is retributive; it is deterrent; it plays upon fear.
In the native African tribal forms of government, while it would not be true to say that there is no justice in the customs they recognize, it is true that the only sentiment appealed to, in the enforcement and even in the enactment of supposed needed measures, is that of fear. Their religion being one of fear, it is therefore appealed to to lend its sanction and aid.
"Fetiches are set up to punish offenders in certain cases where there is an intention to make a law specially binding; this refers more particularly to crimes which cannot always be detected. A fetich is inaugurated, for example, to detect and punish certain kinds of theft; persons who are cognizant to such crimes, and who do not give information, are also liable to be punished by the fetich. The fetich is supposed to be able not only to detect all such transgressions, but has power, likewise, to punish the transgressor. How it exercises this knowledge, or by what means it brings sickness and death upon the offender, cannot, of course, be explained; but, as it is believed in, it is the most effectual restraint that can possibly be imposed upon evil-disposed persons."[58]
Among the Negro tribes of the Bight of Benin and the Bantu of the region of Corisco Island and of the Ogowe River, in what is now the Kongo-Français, there was a power known variously as Egbo, Ukuku, and Yasi, which tribes, native chiefs, and headmen of villages invoked as a court of last appeal, for the passage of needed laws, or the adjudication of some quarrel which an ordinary family or village council was unable to settle.
In those councils an offender could be proved guilty of a debt or theft, or other trespass, and when it was no longer possible for him by audacity or mendacity to persist in his assertion of innocence, he would yield to the decision of the great majority against him. But there was no central government to enforce that decision or exact from him restitution. The only authority the native chiefs possessed was based on respect due to age, parental position, or strength of personal character. If an offender chose to disregard all these considerations, an appeal was then made to his superstitious fear.