Law and the River

       Professions are in important respects alike.  Mark Twain, perhaps the most American of all authors, relished his experience in becoming a professional riverboat pilot and left us a luminous account of that experience in Life on the Mississippi.  He reported that men (they were then all males) sought to be pilots at least partly to satisfy an appetite for power.  He described his own attraction thus:

My father was a justice of peace and I supposed that he had power of life and death over all men, and could hang anybody that offended him.   That was distinction enough for me as a general thing, but the desire to be a pilot kept intruding nevertheless....[I]n  truth,  every man or woman has a master ... but in the day I write  of,  Mississippi  pilots  had  none.  A pilot's movements were
entirely free, he consulted no one, he received comments from nobody  ... So here was the novelty of  ... an absolute monarch who was absolute in sober truth and not by a fiction of words.

Twain mastered  the  language  of  piloting  as had those who had one  before,  much as those who study law or medicine master thousands of new  words  or  new meanings  of  old words, and thereby acquired status and security similar to that of Twain's learned pilots.  He grew to understand that the status-conferring jargon reflected realities of the pilots' special work and professional skill.  Behind the mystifying terms were genuine complexities and shared premises facilitating professional work.  Beneath the tinsel power of language was real power derived from mastery of a difficult and important task.

Thus, Twain was quick to discover the daunting challenge of steering a  boat  from  New Orleans to Saint Louis.  There was not in Twain's time a  single  buoy  on  the  1200-mile  route.   Going upstream, the pilot on schedule  had  to  steer for the slack water, staying close first to one bank  and then the other, according to the pattern of flow of the river.   To find the slack water, the pilot needed to know of a hundred landmarks  for each of the 1200 miles of the journey.  Every point, stump, limb,  ridge, rock, or snag had navigational use.  Going downstream, the pilot sought the fast water, using the same navigational aids but in a quite  different  way.   Going  upstream  at  night,  as they often did, it was   necessary  to recognize  the landmarks in the dark.  For safety, it was  necessary to know the depth of the river in all places.  To some extent,  it  is  possible to read the surface of the water; a knowledgeable pilot can detect a submerged reef from the appearance of the water above, but an unskilled pilot can readily mistake a "wind reef" which is false for  a  "bluff  reef" which  is  real.   Reading  the  water was assisted by  accurate  memory  of  the  depth at each place when last measured by the  pilot's  leadsmen who constantly monitored the amount of water under the  bow  and  under  the stern of the boat.  Reading was also assisted by the feel of the helm, for, as Twain tells us, steamboats do not like shoal water.  Those  best  understanding  these  phenomena earned their authority, and  thus  the  status  and  power  accompanying their rank.  

Twain observed, however, that the  taste  for  status  and  power was not always fully  satisfied  by  the  attainment  of  rank  as master pilot.  It seemed to  continue,  and to influence relations amongst members of the profession,  and  especially  between  master  pilots and the cubs whom they trained.  His own  mentor,  Horace  Bixby,  could be described as a crude, even abrutal,  practitioner of the Socratic method of teaching cubs.  He asked  Twain a  lot  of  questions.   And in conformity with the practice of  legendary law teachers, he commented forcefully when Twain's responses  were  inadequate.   When  Twain missed his first question, Bixby cruelly  denounced  him as "the stupidest dunderhead I ever saw or heard of."  On  another occasion, Bixby summed up his appraisal of Twain: "taking you by  and  large,  you  do seem to be more kinds of an ass than any creature I ever saw before."  If  Bixby  used the carrot of praise, we are not  told.  Only later did Twain find that there was a bond of shared purpose  between  master  and  cub, for Bixby's irritability concealed high hopes  for Twain.  Contemporary novices in law face a task bearing some resemblance to that  faced by the cub pilot.  They often react to the task much as Twain did.  Faced  with  so  much  technical data and prodded by a demanding mentor, Twain  sought,  as  do  many  law  students, to master his work by brute  memory.  But, like professional students in many fields, he came soon to  realize  the impossibility of that technique.  

All the bits of technical  data  and  skill  of  the pilots,  like that of lawyers, was subject to  constant  change.   The  water  ebbs  and rises;  a  course that can be  followed  when  the water is at one elevation is perilous when the water  is  lower;  for the knowing pilot, high water makes a short trip. Also, erosion  was  then  a  very  rapid  process;  points,  reefs, snags, and  channels  moved  from  one  week  to  the  next,  like  laws repealed or  decisions  distinguished.   Because of the rapid change in the shape and  depth  of  the  river, it was necessary to persist in studying it.  Good  pilots  were  perpetual  students  of  the  river.   Hence,  the  bigger  steamboats  often  carried  supernumerary  unpaid pilots whose own boats  were  being refitted or repaired, or who were perhaps unemployed.  These  pilots were traveling "to look at the river," to enlarge and refresh  their knowledge of transient marks and channels.  

But  furthermore,  Twain  soon  came  to  recognize  that  even  perfect  knowledge of all the marks and channels would not make him a good pilot.  The technical knowledge and skill drilled into him by Bixby was not the  durable  substance  he  received.   Twain  tells  us that what he really learned from Bixby were not marks and channels, but judgment and courage  --  judgment in the evaluation of the technical knowledge at his command  and  courage  to  exercise  that judgment despite the ubiquitous risk of  professional  error.   Bixby  taught  clear-eyed  realism and mastery of   self-doubt.   He  taught  these  traits  in  part  by  putting  Twain in  stressful  situations, chiding him when he overconfidently exceeded his  competence or timidly failed to exercise it.  But Twain acknowledged the  limits of professional teaching --Bixby could not expect to confer upon  any cub the soul of a riverboat pilot who lacked the requisite impulses.  In  the  same way that a detailed knowledge of the river is insufficient  to  make  a  good  pilot,  a  detailed  knowledge  of statutes and legal  decisions  is  insufficient  to  make  a  good lawyer; knowledge must be  accompanied by judgment.  

The medium of lawyers is, of course, words not  water, and  the  forces  that  influence  their meanings are social and  political, not natural.  Even  less  than the river is law subject to  precise  measurements  and  certain  predictions.   Law  is  a craft, or  perhaps  an  art  or  even  a  faith,  but  seldom in any useful sense a
  science.  Intuition  is  a  critical element of sound professional legal judgment.  Yet  all  who  use  intuition  need to know its limits.  Lawyers must be  especially  distrustful  of  themselves,  on  guard  against the risk of  mistaking  their  own  political or social preferences or those of their  clients  for those embodied in legal texts.  For lawyers, as for pilots,  the balance to judgment is courage, intellectual courage, the courage to
  risk  error  when  the  odds  are  right.  Without that form of courage,
  professional  judgment  is  neutralized  by  timidity.   Fortunately for  lawyers,  the  stakes  with  which  they gamble are materially less than  those  riding  on  the judgment of riverboat pilots, upon whose judgment  depended the lives of all on board.  But the stakes are significant, and  include  not  only the welfare of clients, but also the usual hazards of  competitive  activities -- the risks of humbling defeat and the exposure
  to public view of one's limitations.  

Bixby,  like  other mentors of apprentices, also aught by example.  Far  more  than  any classroom teacher, he was a professional role model.  On  one  occasion, a nighttime passage of the dangerous Hat Island Crossing,  he  provided  a gaudy example of professional courage.  The big boat and  her  pilot  house  were  full of supernumerary pilots, many of whom were  booked  to leave Cairo the next morning.  On their account, and in their  presence, Bixby made the crossing at full downstream speed without a ray of light,  gliding by instinct through two narrow sand bar channels, in  order  to  make a sharp turn through a third and shallow channel.  Twain  was greatly moved by the event, saying:  

Fully  to  realize  the marvelous precision required in laying the great  steamer  on her marks in that murky waste of water, one should know that  not  only  must  she pick her way through snags and blind reefs and then  shave the island so closely as to brush the overhanging foliage with her  stern,  but at one place she must pass almost within an arm's reach of a  sunken and invisible wreck that would snatch the hull timbers from under  her if she should strike it, and destroy a quarter of a million dollars'  worth  of  steamboat  and  cargo in five minutes and maybe a hundred and  fifty lives into the bargain.  As the boat entered the third channel, her keel rasped against the sand  and  for  a moment hung on the apex of disaster.  When she went over the  bar  and  into  calm, deep water, a great cheer loosened the roof of the  pilot house.   And, as Twain reported it, "The last remark I heard that  night  was  a compliment  to  Mr.  Bixby, uttered in soliloquy and with  unction  by  one  of our guest pilots.  He said "By the Shadow of Death, but he's a lightning pilot."

"Lightning  lawyers"  may  sometimes  employ  comparable  courage in the  exercise  of  professional  judgment.   Yet  Twain's account suggests an  inescapable  tension:  was  Bixby  justified  in  risking  the  lives of  passengers  to  get  some  of them to Cairo on time?  To presume to make  such  decisions is at once an arrogation and an indispensable service to  those  in no position to evaluate the hazards for themselves. Driven by  the  urge to impress his co-professionals, Bixby seems for the moment to  have  forgotten  his  primary responsibility for the safety of his boat,  passengers, and cargo.  Similar temptations confront lawyers.  

To  become  adept  in  such intricate professional work, Twain observed,  effects  a  change  in  the  values of the worker.  Indeed, professional  skills   alter   our  capacity  to  perceive  events  and  relations  by  substituting a new lens through which they are observed.  For Twain, the  change was noticed in his ability to appreciate the river for what it is  to  lay  persons.   "I  had  lost something," he complained, "that could  never  be  restored to me while I lived.  All the grace, the beauty, the  poetry,  had  gone out of the majestic river."  Twain could remember  appreciating a beautiful sunset on the river, but after his training, he  could no longer enjoy rapture, but would comment on a sunset thus:     

This sun means that we are going to have wind tomorrow; that floating     log means that the river is rising, small thanks to it; that slanting     mark  on  the  water  refers  to  a bluff reef which is going to kill     somebody's  steamboat  one of these nights, if it keeps on stretching     out  like  that;  those  tumbling  boils  show a dissolving bar and a     changing channel there; the lines and circles on the slick water over     yonder   are   a  warning  that  troublesome place  is  shoaling  up     dangerously;  that  silver  streak in the shadow of the forest is the     break  of a new snag, and he has located himself in the very place he could  have found to fish for steamboats; that tall dead tree, with a   single living  branch,  is not going to last long, and then how is a body  going  to  get  through  this  blind place at night without the     friendly old landmark?     No, the romance and  beauty were all gone from the river.  All the value  any  feature of it had for me now was the amount of usefulness it  could furnish toward compassing the safe piloting of a steamboat.  

Since those days, I have pitied doctors from my heart.  What does the lovely  flush of a beauty's cheek mean to a doctor but the break that ripples  above  some  deadly disease?  Are not all her visible charms  sown  thick  with  what are to him signs and symbols of hidden decay?     Does  he  ever  see  her beauty at all, or doesn't he simply view her     professionally,  and  comment  on  her  unwholesome  condition all to  himself?   And doesn't he sometimes wonder whether he has gained most or lost most by learning his trade?  

Twain overbears this point, valid though it is for other forms of  professional  work.   Most who perform such work succeed in creating a  divide  between personal and professional activities and bring different  values  to  the separate spheres of their lives.  By this means, most of  the  doctors  whom Twain pities do seem to manage sex lives that are not  unduly  burdened  with  their  professional  perceptions of blemishes on  their  partners.   But  few  such  divides  are  impervious, and just as  personal  preferences  may  distort  professional judgment, professional  values can influence private attitudes and relations.  

Moreover, it is plain that Twain's romance with the river had not been  destroyed  by his professionalism.  It had been transformed, and perhaps even elevated to a new level of appreciation.  The river had become part  of  his life  in  a  way  that could never happen to a mere idolater of  sunsets.   He had  come to  see  himself  as  part of the great river,  deriving from it an important part of his self-regard.  If this were not  evident  from  his  accounts, Twain is at last explicit when he observed  another essential characteristic of good pilots, of those pilots who are  most intense in reading the river, who travel when they are not working  in  order  to  maintain  their knowledge and their skill, who have honed  their  intuitive  judgment  so that  they  sense  what lies beneath the  surface of the river, who have developed the self-confidence to use that  judgment  for  the  safety  and convenience of passengers.  Such pilots,  Twain  believed,  were  romantics:  they  had  fallen  in  love with the  everlasting  mystery  of  that great flow of mud.  "Your true pilot," he  said,  "cares nothing  about  anything  on earth but the river, and his  pride in his occupation surpasses the pride of kings."  

Few  American  lawyers  are  more  proud than kings.  True,Tocqueville, writing  in 1835, compared them to European aristocrats in a passage often  cherished  by  lawyers.   Tocqueville  had in mind not the social  status  of lawyers,  but their political role; he correctly saw them as  the bulwark protecting citizens of the republic from abuse by those they  select  to  exercise the powers of office.  Collectively, lawyers supply the structure holding the  republic  together.  The rightful pride of  lawyers is therefore not that of royalty, but of anti-royalists.  It  is  this  political dimension of American law that makes it uniquely  complex  and  such  a  source  of infatuating  and  everlasting wonder.  Lawyers are  not  notably  less conscious of status or less greedy than  Twain's  pilots.  Many fail to honor their calling.  But many find moral redemption in the public mission they share, a public mission not wholly unlike that of steering crowded  boats  past unstable riverbanks and  through moving shoals.