The saltiness of sea spray clung to his thoughts as his sledgehammer swung to break another large rock. A low sun barely warming the cold stone walls nearby. Never had James thought before he’d be so content to be fettered to his convict mate Davis, whilst doing hard labour in Port Arthur. This was surely, he’d considered, better than the original fate presented by Justice Horne just six months earlier to both he and Davis as they stood together in a court room in Hobart Town.

Justice Horne had asked them then, six months earlier in that court room, in conclusion before the jury verdict, ‘Do you anything else to say for yourself?’

James had stood at that time to address the Justice and jury in defense of his actions aboard the Lady Franklin over late December 1853. His grey eyes stern with the conviction of someone ready to meet his fate, James addressed the court to say, ‘If you put a bird in a cage he will be sure to try to fly out. My intentions were not blood thirsty.’ The anchor tattoo on his left wrist twisted as his hand trembled by his side.

James knew if the jury found him innocent, he would return to Norfolk Island to serve his existing prison time. If found guilty as charged, then he’d feel the twine scratch of the hangman’s noose.

Justice Horne reminded the jury that James Merry and Joseph Davis were not, unlike the other men involved, charged with the piracy of the Lady Franklin, but rather on one count each of injury with intent to murder, and a second count each of cutting and wounding with intent to do some grievous bodily harm.

James glanced toward Davis to see the older man also seemed resigned to his fate.

The jury returned within ten minutes, handing the Justice verdicts of each man’s innocence on the first count, and each man’s guilt on the second; with a recommendation of mercy for them both.

Over the six months since sentencing, James thought often of that moment. Justice Horne committed them to their fate: to hang for their crimes, with a mention that the recommendation of mercy be forwarded to the appropriate quarter. To what that meant, James was not sure.

As he stood with Davis now, the sun lowering in the sky past the mountains west of the Port Arthur prison, James felt that mercy of hard labour was better than the alternative originally handed down in that sentence.

Though they had sat in cells for two merciless dark days waiting to be hanged, the Justice had personally visited them to advise they would be sent back to Port Arthur, where he’d check in on them from time to time.

‘Perhaps now,’ the Justice had said, ‘you men can demonstrate the lessons of your past as suitable behaviour for your future. Who knows what time may bring.’

James stood now, six months past that commutation of sentence, soaking in what little light the dull sun of Port Arthur provided. He thought of his life ‘till now, ricocheted from fault to failure so often. He would have been in London still, if not for being caught with Miss Sophia Gardner’s ribbon and silk. Transportation his sentence for a few Pound’s worth of milliner supplies he’d have been lucky to have sold for a few shillings.

Six months he’d awaited aboard the squalid conditions of the hulk York before his shipment to the other side of the world. Van Diemen’s land hadn’t held him though. To Norfolk he’d been sent for his numerous crimes of escaping imprisonment. ‘Till he escaped there, too – once to be recaptured, the second time only to give in to the sparse existence of conditions in a tropical paradise lacking in resources he recognised or understood.

‘What are you day-dreamin’ about?’ asked Davis with his usual gruff. ‘That tropical island perhaps – at least the sun there warmed you to the bone,’ he added, as he rested the head of his sledgehammer on the ground.

James looked at him with an amused smirk. ‘We’d have been warm ‘till our death. Which would’ve been much sooner than now, of course,’ he said.

‘Too right,’ said Davis, the blue flower tattoos on his left arm dancing as he twisted in his hand the long handle of the sledgehammer.

‘If you hadn’t of bargained for your life, we’d both be gone by now. I still wish I’d seen that sailor’s face when you idled up to him and surrendered on that sandy beach. Or better, that inspector Bencraft from the ship the Herald when you boarded – an infamous pirate of the Lady Franklin, found lost on a tropical island!’ Davis laughed. ‘I’ll never thank you for turning me in, you bastard. But I will thank you for saving me nonetheless,’ he said, his smile slipping.

James gave Davis a wry half smile.

‘You should thank Captain Willet. Had he not testified in both our favour, we know where we both’d be. A long drop with a short rope,’ James said.

James thought back to the Lady Franklin, the despairing Captain Willet cut deeply by cutlass to the head and arms, his wounds oozing his life blood over the timbers of the ship’s deck. James wondered what the Captain must have thought about his barque Lady Franklin being commandeered by the convict human cargo, who’d cut their way from the holding cell, and overpowered a regiment of soldiers with nothing more than the broken handle of a tin pannikin. Complacent guards against desperate men.

Davis had led James to the path of the righteous. The two men working together to shave the Captain’s hair so they could treat the deep wounds to his head.

James and Davis guarded Captain Willett to prevent him from interfering with their fellow convicts’ takeover of the ship. The convicts had decided it time for them to flee with the long boat and cutter to the Fejee islands, and had threatened the Captain with death. James had told his fellow convicts that the Captain had been good to them all, and that if any man were to make an attempt on the Captain’s life, they would have to do so first through James himself.

‘Look lively,’ said Davis, ‘stop your daydreaming of the past – someone approaches.’

James looked in the same direction as Davis did, as a man neither of them recognised approached from the Port. In the distance behind him, their once, short-time mistress of the sea, the Lady Franklin, sat anchored in the bay.

‘Messer’s Merry and Davis, I believe,’ said the man. ‘I’m Mr. Martin Cash, here on behalf of Justice Thomas Horne.’  

Mr. Cash paused as he looked over the men, as they stood before him, disheveled and dirty, in rags of prison-issue dress, chained to one another as convicts, and in life. He pulled a letter from his coat pocket.

‘I have here a letter of most importance,’ he said.

James looked at Davis, as Davis looked at Mr. Cash up and down. The representative’s clothes tailored, clean, and well kept.

‘Mr. Martin Cash? Well, aren’t we almost respectable now!’ said Davis with a chuckle. ‘Merry, you remember Martin? The first convict to escape here by swimming across that shark infested Eaglehawk neck!’ Davis said, wagging his hand out past the port.

‘My reputation proceeds me, I see,’ said Mr. Cash. ‘That was a long time ago now, indeed. My bush ranging days are long over – as are my convict days since I earned my ticket o’ leave.’

Mr. Cash thoughtfully tipped his head toward the men.

‘This letter,’ said Mr. Cash, before clearing his throat, ‘is a commutation of sentence signed by Justice Horne. Both you men are…requested to spend the remainder of your sentence under my watch in the service of Justice Horne, ‘till such time as your sentence is complete – or otherwise – at the discretion of his Honor.’ He gave the men a half smile, and with a nod of his head, handed the letter to James.

After a brief glance to Davis, James unfolded the letter, reading aloud its contents.

The men stood in silence for a few moments, a cool breeze beginning as the last of the sun dipped behind the mountains.

‘It’ll be our honour to serve,’ said Davis, as he produced his hand to Mr. Cash. They clasped hands firmly with a short, hearty shake.

‘And to you, Merry,’ said Mr. Cash, as James clasped his hand in a friendly shake, ‘I say: some birds, as us, cannot be held by a cage for long.’