In civilization, under governments other than autocratic, law being made and executed, at least professedly, with the consent of the governed, all enactments find not only their justification, but also the possibility of their enforcement, in their support by public opinion. It is the general consensus as to the need of an enactment regarding certain conditions affecting the lives or happiness or rights of the majority, that crystallizes opinions into a form of words, and gives authority for the enforcement of the decisions expressed by those words.
This is also partly true even under governments more or less despotic, where the will of the ruler, not of the ruled, is made the basis of law. Few despots are so utterly tyrannical as deliberately to arouse opposition on the part of their subjects. Even a Nero, who would refuse a petition if it happened to run counter to his whim or caprice of the day, would grant that same petition if it happened to coincide with his own whim of another day. Even he thought it desirable to pander to the public taste for the butcheries of the amphitheatre, not simply because he himself enjoyed them. Though he could initiate no measure for the real good of Rome, he recognized the necessity of responding to the cry, “panem et circenses.”
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.
Egbo, Ukuku, Yasi, was a secret society composed only of men, boys being initiated into it about the age of puberty. Members were bound by a terrible oath and under pain of death to obey any law or command issued by the spirit under which the society professed to be organized. The actual, audible utterance of the command was by the voice of one of the members of the society chosen as priest for that purpose. This man, secreted in the forest, in a clump of bushes on the outskirts of the village, or in one of the rooms of the Council House, disguised his voice, speaking only gutturally. The whole proceeding was an immense fiction; they believed in spirits and in the power of fetich charms, and they made such charms part of the society’s ceremonies; but, as to the decisions, all the members knew that the decision in any case was their own, not a spirit’s. They knew that the voice speaking was that of their delegate, not of a spirit. Yet for any one of them, or for any woman, girl, or uninitiated boy, to assert as much would have been death. And those men who would not have submitted to the same decision if arrived at in open council of themselves as men, and known before the whole village to be speaking only as men, would instantly submit when once the case had been taken to Ukuku’s Court. They carried out that fiction all their lives. Let a man order his wives and other slaves to clear the overgrown village paths, they might hesitate to obey by inventing some excuse that they were too much occupied with other work, or that they would do it only when other people who also used the same path should assist; or if under the sting of a kasa-nguvu (lash of hippopotamus hide or manatus skin) they started to do the work, they might do it only partly or very unsatisfactorily. But let the man call in the other men of the village and summon a meeting of the society, the recalcitrants would submit instantly, and in terror of Ukuku’s voice; much as they might possibly have suspected it was a human voice, they would not dare whisper the suspicion. They helped to carry on a gigantic lie. They taught their little children, both girls and boys, that the voice belonged to a spirit which ate people who disobeyed him. When the society walked in procession to or from their appointed rendezvous, they were preceded by runners who, with a well-recognized cry and with kasa-nguvu in hand, warned all on the path of the coming of the spirit. Women and children hastened to get out of the way; or, if unable to hide in time, they averted their faces. The penalty when a woman even saw the procession was a severe beating; that, however, might be commuted to a fine.
About thirty-nine years ago, on the island of Corisco, the then headquarters of the Corisco Mission, there was a long-standing feud between the Benga tribe, inhabiting that island, and the Kombe tribe, dwelling at the mouth of the Eyo River, of the Benita country, fifty miles to the north. Benita was also a part of the mission field. The quarrel between the two tribes greatly obstructed our mission work. Missionaries were entirely safe in travel between the two places, respect being given them as foreigners, and their presence in a boat protected their crews; but it was often difficult to obtain a crew willing to go on the journey without the presence of a white man. The difficulties caused by the feud fell heavily also on the Benga people themselves. The island itself had no products for trade; ivory, dye-woods, and rubber came from the Benita mainland. Many Kombe women had married Benga men, and needed frequently to revisit their own country. Finally, to end the feud, it was agreed that the Kombe Ukuku Society, whose power was held in even greater fear than that of Benga, should come to Corisco and settle the affair.
It was a day of terror at the Girls’ Boarding School, of which I was then superintendent. As the long, blood-curdling yell of the forerunners on the public path, that ran only one hundred feet from the school dwelling, announced the approach of the procession, the girls fled, affrighted, to the darkness of the attic of the house. After the procession had passed, they ran away secretly in byways to their own villages, feeling safer in the darkness of their mother’s huts than in the mission-house; for it had been reported that Ukuku, besides settling the tribal feud, intended to attack the mission work that had been successfully making converts among the Kombe, because any native who became a Christian immediately withdrew from membership in the society. It had therefore begun to feel a little anxious about its safety. I stood at my door and saw the procession pass; they saw me, but, because of my sex, they did not show any displeasure. They were painted with white and other colored chalks that gave a horrible expression to their faces; their look was defiant, and a hoarse, muttered chant had, even on myself, a depressing effect. I could well imagine that to a superstitious native mind the tout ensemble would be terrifying.