518 Assembly Proceedings, September 1664.

U. H.
Journal
1659-69
p. 202

Henry Spinke plt The plts petⁿ being the same putt
Doctor Luke Barker def^t) in by him last Pro^all Court now read
in Court the def^t in answere thereto putteth in this his answere
& also the Charge which are as followeth.

To the R^t hono^ble the Leiutenn^t Generall
and Councell of Maryland

The humble petⁿ of Luke Barber by way
of answere to the petⁿ or declaracon
of Henry Spinke
Sheweth
That whereas the s^d Spinke accuseth yo^r pet^r of calling his
wife Ellinor whore itt is true he denyeth itt not, nor any parte
or parcell of the s^d Charges of immodest and lascivious Car-
ryages of the sd Ellinor as they are charged & Contayned in
the afores^d petⁿ or declaracon and relating in the least to the
said Ellinor but pleades a speciall Justificacon as not actionable
humbly throwing himselfe and Case vpon this most hono^ble
Court & their Judgement whither any of the s^d words are
actionable yor pet^r humbly Conceiving with Submission to yo^r
honors they are not & then Conceives vnder the submission
aforesaid a Jury ought not nor can have Cognizance thereof
for ad Questionem Legis Judices ad questionem facte Juratores
The p^rmisses Considered yo^r pet^r humbly
Craves such Releife for his vnjust molestacon
as yo^r honors thinke meete
And as in duty bound he shall
pray &c.
The Charge
That Doctor Luke Barber did call Ellinor the now wife of
Henry Spinke whore that he did divers tymes affirme that she
was a Whore & that he had taken her with her Coates vp and
that Rogue Thomas Hughes with his breeches downe. And
that he brought none but Rogues and Whores out of England

p. 203

some out of Bridewell some out of Newgate and some from
the Whipping Poste & also th^t her oathe was false and malitious
which he would prove
This being the Charge my Adversary accuses me with tis his
duty to prove itt actionable yett for sattisfaccon of this hono^ble
Court I shall for once Endeavor to prove the negative (vizt)
That none of all the Charge is actionable & that out of
Shepard & his authorities being the very booke the hono^ble
Leivtenn^t Generall Chancellor and this hono^ble Court the other
day made vse of in a case of the like nature ffirst then as to
the words (whore) the said Shepherd fo 76 affirmes positively