It must be admitted that the question of breach of privilege was somewhat more complicated than Lord Cochrane considered. His opponents did not think with him that he was still a member of the House of Commons. That membership had been taken from him, formally, though wrongfully, by his expulsion on the 5th of July, and he had himself recognized the expulsion by accepting re-election from the constituents of Westminster on the 16th of the same month. According to precedent, however, that re-election could not be perfected until the customary oaths had been taken; and, through a trick contrived in the clerks' office, he was hindered from taking them before the arrival of the marshal and his consequent arrest. Yet there can be no doubt that, in the special circumstances of the case, this arrest was especially indecorous, and, in the method of effecting it, altogether illegal. If he had no right in the House of Commons, he was a common trespasser, and ought to have been at once removed by the servants of the House, who alone could have power to touch him within the walls. To allow him a seat therein, without molestation, until the arrival of the servants of the King's Bench Prison, and then to allow those servants to enter the House and act upon an authority that could there be no authority, was wholly unwarrantable, a gross insult to Lord Cochrane, and, to the customs of the House of Commons, an insult yet more gross. But to the hardship and the insult alike the House of Commons, servile in its devotion to the Government of the day, was blind.
A miserable farce ensued. While the House was sitting, a few hours after Lord Cochrane's capture, a letter from the Marshal of the King's Bench was read by the Speaker, in which his bold act was formally reported and apologized for. "I humbly hope," he there said, "that I have not committed any breach of privilege by the steps I have taken; and that, if I have done wrong, it will be attributed to error in judgment, and not to any intention of doing anything that might give offence."
The short debate that followed the reading of that letter is very noteworthy. Lord Castlereagh spoke first, and dictated the view to be taken by all loyal members of the House. "From the nature of the arrest and the circumstances attending it, I do not think, sir," he said, "that the House is called upon to interfere. I am not aware, as the House was not actually sitting, with the mace on the table and the Speaker in the chair, when the arrest took place, that any breach of privilege has been committed. It must be quite obvious to every man that the marshal has not acted wilfully in violation of the privileges of the House. No blame can attach to him, since he has submitted himself to the judgment of the House of Commons after having done that which he considered his duty as a civil officer. Having had Lord Cochrane in his custody, from which he escaped, the marshal was bound not to pass over any justifiable means of putting him under arrest whenever a fair opportunity occurred."