30, 31. Dominick Fitzgerald , and James Lee , alias Welch , were indicted (with Elizabeth Fitzgerald , and James Derneane , not taken) for that they, after the 24th of June, 1736, viz. September 16th , at St. Bennet Paul's Wharf, feloniously forged, and caused to be made and forged, a certain Paper Instrument, partly printed, and partly written, seal'd, purporting to be the last Will of Peter Perry , with a counterfeit Mark thereto subscrib'd, pretended by them to be the proper Hand-writing of the said Perry, and declared by him in the Name of John Perry , by Mistake , which said Paper Instrument is in the Words following, viz.
In the Name of God, Amen,
First, and principally, I commend my Soul into the Hands of Almighty God, hoping for Remission of my Sins through the Merits of Jesus Christ, my blessed Saviour and Redeemer, and my Body to the Earth or Sea, as it shall please God, and as to such worldly Estate and Effects as I shall at the Time of my Decease be possess'd
of, or entitled to, I give and devise the same as followeth. I give to my dearly beloved Sister Ann Perry , all such Sum or Sums of Money, as now is, or hereafter shall grow, and become due to me for my Service on board the Lancaster Man of War, or any other Ship or Ships whatsoever; And I hereby nominate, constitute and appoint the said Ann Perry , her Heirs and Assigns, sole Executrix of this my last Will and Testament, and all the rest and residue of my Estate whatsoever, both real and personal; and I do declare, this to be my last Will and Testament, hereby revoking all former Will or Wills by me made.
In witness whereof I have hereunto set my Hand and Seal, this 28th, Day of March, 1737 , in the Tenth Year of the Reign of our Sovereign Lord by the Grace of God, &c.
+ His Mark.
With Intent to defraud our said Lord the King, &c.
The Indictment farther charged the Prisoners with publishing the said Will, knowing it to be forg'd and counterfeit.
The Council for the Prosecution set forth, that the Crimes of which the Prisoners stood indicted, were in their own Nature, as destructive of Society, and as Heinons as any Crimes could possibly be. That it was for this Reason, (the Crimes of Forgery and Perjury being so frequent, the Error that flieth by Night, and the secret Transactions by which the Lives and Properties of every Man were in Danger) the Punishment which was extremely mild, was not thought adequate to the Crime, and therefore the Wisdom of the Legislature, thought fit by an Act of this present Majesty, to make this Offence Felony, without Benefit of Clergy.
That this Law was to be in Force for five Years only, but before its Expiration, the good Effects of it were perceived, and it was therefore revived, and made perpetual, by another Act of the 9th of his present Majesty, &c. &c.
The Act of the 2d of the King which made this Offence Felony, and the Act for the reviving and making the same perpetual, were read.
Council. Who brought it?
Mr. Taverner. I can't tell who produced it, but Fitzgerald was present, and the Executrix too. Lee was not there when the Will was first brought; he came to account for the Error in it. I got the Executrix sworn before Doctor Chapman, and then I observed a Mistake of John at the Bottom, instead of Peter, upon which I applied to the Register's Clerk who told me that Error must be accounted for. I then told the Executrix, Ann Kelly , in the Prisoner Dominick's hearing, that she must either produce the Person that wrote the Will, or one that was present at the Execution of it to account for the Mistake. They went away that Time, and the next Day Dominick brought the other Prisoner Lee to me, - I can't tell whether Kelly was present then. I am certain Lee was, for I took particular Notice of him as he came into the Court. He pretended that his Name was Welch , and that he was one of the subscribing Witnesses.
Council. Did he make any Affidavit that Night?
Mr. Taverner. No; he seemed to be in Liquor, and I told him the Thing he came about was of a very serious Nature, therefore I would not draw an Affidavit for a Person in such a Condition. I appointed him to come some other Time, when he was perfectly sober, and I think the next Morning he came, and I took Instructions from him, and had him sworn to it. This is the Affidavit, he swore to it by the Name of Welch, and I have attested it.
Council. Was any Body with him when he came to swear.
Mr. Taverner. The other Prisoner was with him; I took particular Notice of him (Fitzgerald) his Person is so particular, that I can't easily forget him, and he asserted, that it was the Will of Peter Perry .
Council. When they left you, where did you carry the Will and Affidavit?
Mr. Taverner. I delivered them to Mr. Goodwin, in Order to have the Probate filled up.
Goodwin. These are the same that I had
from Mr. Taverner, and they are in the same Condition now, except this Tear on the Back.
The Will was read.
Council. Read the Affidavit,
It was read.
'' This Day appeared personally, James '' Welch, of St. George, Bloomsbury, Linnen draper, '' aged about 50 Years, and alledges, that '' he has been well acquainted with Peter Perry , '' late of his Majesty's Ship the Lancaster, '' Widower, for about 25 Years, to the Time '' he enter'd on board the said Ship, &c. and '' farther deposes, that he, (this Deponent) did '' write and fill up all the Blanks , and is one '' of the subscribing Witnesses to the said Will '' of Peter Perry , beginning thus, In the Name '' of God Amen , and ending thus, John Perry , his '' Mark; and that the said Perry did make his '' Mark, and deliver the same, and that he the '' said Deponent, did by Mistake write the Name '' of John Perry , but that the said Deceased's '' is Peter Perry .
Council . Are you sure that the Prisoner Lee is the Person who swore this by the Name of Welch?
Mr. Taverner. Yes, the fat Person (Lee) is the Man.
Doctor Chapman. I am the proper Person to grant Probates, and I remember granting one to this Will; - here is my Hand to it.
Council. Do you remember the Person that swore that Affidavit?
Dr. Chapman. No, I can't say that I do.
Council. Where was this transacted?
Dr. Chapman. In my Chambers at Doctors-Commons, in the Parish of St. Benedict.
The Probate was read.
Prisoner Lee. Ask Mr. Taverner what Condition I was in when this was made?
Mr. Taverner When he came first, he behaved as if he had been drinking ; his Eyes looked heavy, and he talk'd as People usually do under such Circumstances, but when he came the next Day to be sworn, he was perfectly Sober.
Lee. I was as crazy and as lunatic as any Thing could be, and I knew no more what I was doing, thin the Child that is unborn .
Christopher Ecklin . The thin Man in the Bar is Fitzgerald, the fat one is Lee. About the Middle of September last, the two Prisoners, Fitzgerald's reputed Wife, James Dernean , James Broughton , and John Parrel , came to my House. We had a good deal of Discourse about going to the Navy-Office, and they asked me to go with them. I told them, I had some Business with my Coal-Man at Billingsgate, and would walk so far with them. At their Desire I went with them as far as Tower Hill, and they attempted to go into the Ship, but there being some Company there, we came out again. We then went to the Tyger : that House was full of Soldiers, and therefore we adjourned from thence to the Three Crowns in Thames-street. We call'd for a Pot of Beer, and then Lee said to Fitzgerald, Dominick! you know what we come about! why don't you do that Thing? So I will, said Fitzgerald; upon which he took a Paper out of his Pocket , which I found to be a blank Sailor's Will. He filled up the Spaces, and made the Mark, and then James Lee signed it in the Name of Welch, and James Dernean did the like in the Name of John Rogers .
Counc Is that the same Will as you saw Fitzgerald fill up?
Ecklin. I am in a manner very sure of it, for in rubbing it to make it look old and dirty, they tore it here before they carried it to Mr. Taverner's; besides Fitzgerald said to me, Come Mr. Ecklin, won't you be a Witness to this Will? Why, (said Lee) you may as well, for we received Money but last Week on such an Account as this; no Body can be a Sufferer, for this Money goes to the Chatham Chest , and the King never pays twice. I desired to be excused, and then Fitzgerald said, I am but a poor Man, and there is a good deal of Wages due to this Man, and if I knew that any Body would discover, I'd run a Knife into him.
Counc. Was Fitzgerald's Wife there?
Fitzgerald. How long has he known me?
Ecklin. I had not been intimate with him till a Fortnight before this.
Lee. How long has he known me?
Ecklin. About 6 or 8 Months.
Lee. Ask him if I signed the Will?
Fitzgerald. I should be glad to know what Manner of a House he keeps.
Bentham. He belonged to the Ship Lancaster, and at the Time of his Decease there were 42 l.
16 s. due to him. There was a Ticket made out for the Payment of it, and it was transmitted by the Officers of the Ship to the Navy-Office.
Counc. After this Ticket was made out, was it delivered to any Person?
Lee. This Peter Perry I knew very well, and I had formerly made a Will for him, and sign'd it John Perry by Mistake. That Will was lost, and they have trump'd up this Will, and brought me to make an Affidavit, thinking it was the real one. I knew I had made such a Will, and I thought this had been the same, and they threaten'd to have my Life, and tear me to Pieces if I would not make an Affidavit of it. As for the Name of Welch, I was in Debt, and therefore was sometimes obliged to conceal my true Name.
Both Guilty , Death .