Australian Dictionary of Biography

George Higinbotham, c.1875, by Johnstone, O'Shannessy & Co.

State Library of Victoria, 49197146

George Higinbotham (1826-1892), politician and chief justice, was born on 19 April 1826 in Dublin, the sixth son of Henry Higinbotham, merchant, and his wife Sarah, née Wilson. He attended the Royal School, Dungannon, and at 18 entered Trinity College, Dublin (B.A., 1849; M.A., 1853). In 1847 he joined the London Morning Chronicle as a parliamentary reporter and in 1848 enrolled at Lincoln's Inn. In June 1853 he was called to the Bar and in December sailed for Melbourne in the Briseis. In March 1854 he was admitted to the Victorian Bar and on 30 September married Margaret Foreman at the Licensed School House, St Kilda.

Higinbotham combined journalism and law in the colony. He wrote for the Melbourne Morning Herald and at 30 became editor of the Argus. His editorials suggest his struggle to reconcile his high-principled liberalism with colonial exigencies. One of his reporters, Charles Bright, recalls his dislike of making snap decisions on political issues and says that his scrupulous attention to every detail 'from leading article to minutest paragraph' led to slowness in publication that might be compared with his later repute for pedantry on the bench, despite the conciseness of many of his judgments. On a matter of principle Higinbotham clashed with the proprietor, Edward Wilson, and resigned in July 1859.

In 1861 he was elected for Brighton to the Legislative Assembly. As attorney-general in the McCulloch ministry in 1863-68 he was unquestionably the leading radical in Victoria. He established a local precedent by declining private briefs while attorney-general but after resigning from the ministry he returned to the Bar. He was defeated at Brighton in 1871 but represented East Bourke Boroughs in 1873-76. In 1880 he was appointed to the Supreme Court bench and became chief justice in 1886.

Higinbotham had started his political career with all the perplexities of an inexperienced politician testing the practicability of his theories. The uncertainties and adjustments in his thought were illustrated in 1862 by his support of (Sir) Charles Gavan Duffy's land bill and Richard Heales's common schools bill though he soon saw the weaknesses in both. By 1864 he publicly confessed a mistake in his judgment over the Duffy Act which gave temporary security of tenure to squatters, whom he called 'the wealthy lower orders', but achieved little for smallholders. He tried to redress the balance by supporting James Grant's 1865 Land Act but later became even stronger in his views. By 1873 he was affirming that 'property was robbery', that crown lands should be available only on thirty-three-year leases and a progressive property tax levied to make great estates unprofitable.

Higinbotham's dogged struggle for educational reform was perhaps of more immediate importance, but that too revealed his hardening in the face of obstruction. Under him the Argus had encouraged educational development but he presented no clear solution for the religious difficulty. During 1861 he advocated a private-enterprise approach. Relying on the authority of J. S. Mill, he proposed that parents should initiate new schools and the government confine itself to financial help. He recognized the need for a state school system but faced the dilemma that, although the state could not engage in spiritual education, education without religion was 'mere instruction'. Yet in 1862 he supported Heales's Act, which created a Common Schools Board with power to establish schools, because he had found that public indifference led to neglect of education. The Act satisfied no one. State aid to church schools was continued but bitter competition emerged between the national and denominational schools and between the denominations themselves. The compromise was costly, and ineffective in bringing education to outlying districts.

By 1867 Higinbotham was convinced that 'in justice to the equal rights of the children of all classes' the state must take full responsibility for national education and withdraw aid to denominational schools. This conclusion had been unanimously reached by the royal commission set up in 1866 with Higinbotham as chairman to prepare a public instruction bill. In five months the commissioners met fifty-two times often for long hours. Higinbotham never missed a meeting. The secretary, David Blair, claimed that the amount of work was two or three times greater than usual for commissions and that 'the unremitting zeal of their Chairman acted like a charm on the Commissioners'.

Wanting education rather than mere instruction, the commissioners allowed a place in the national system for 'common Christianity' but not for sectarian doctrine. When Catholics rejected this as state-sponsored Protestantism and appealed for a special grant, Higinbotham could see no way out. In the assembly he suggested that, if Protestants united in providing religious instruction, the case for Catholic aid might later be reopened.

The commission achieved little more than to expose the nature of the dilemma. McCulloch gave no support to its draft bill and Higinbotham was attacked on the one hand for not introducing a fully secular measure and on the other for withdrawing aid from the churches. The Anglican and Catholic clergy battled to retain state aid and those denominations most in sympathy with the bill withheld support in fear of strengthening the Catholic case for a separate grant. Isolated, Higinbotham withdrew his bill convinced that henceforth only a fully secular measure would do. This last important attempt to find a place for religion in the national system may well have hastened the secular solution, for Higinbotham's failure enlightened public and political opinion by revealing the difficulties of compromise—a lesson that he repeatedly pointed out in the House. Although out of parliament when the 1872 Act was passed Higinbotham had pre-eminently cleared the way for it. He had battled hardest for a religious sentiment in education, yet in 1876 on his last day in parliament he argued that all Christian references be expunged from school textbooks since they offended Jewish parents and children, a recommendation that was later adopted.

In Higinbotham's fifteen-year pilgrimage to extreme state secularism, his personal piety remained unshaken. He was born and buried an Anglican, however unorthodox. In an 1887 address, The Opening of the Unitarian Church, he expressed sympathy with that church which 'alone… preserves the idea of the unity of God', 'the simplicity of … the Semitic ideal', and welcomes the 'distinctive views … of independent thinkers'. He liked to belong to a congregation, but no Christian church, he once said, could set up the 'shadow of a rational claim' to be 'the sole Church of Christ'. The clergy of all denominations were 'the greatest enemies to religious education', their sects mere 'competing companies or corporations' displaying a 'pestilent energy in collecting property' as 'proof of vitality'. He believed that the churches and the clergy came between man and his Maker, whereas men, united in their rationality, could find 'God, revealed to the intellect in every minute movement of matter' if they merely tried 'to catch the sound of that one voice which alone above the din of nineteen centuries still makes itself heard'. In attacking clerical orthodoxy in his 1883 lecture, Science and Religion, in the Scots Church, he provoked a spate of pamphlets, lectures and sermons and precipitated the virtual expulsion of his chairman, Charles Strong, from the Presbyterian ministry.

Higinbotham's deeply religious sense explains many of his political beliefs: his dislike of greed or even private gain; and his belief in the laity and individual judgment unfettered by religious or political authority. Passionately religious and democratic, he believed in the common man as the source of political authority.

In the Argus between December 1856 and April 1858 he enunciated democratic principles in a battle with his proprietor who advocated multiple electorates to prevent manual workers from gaining a majority vote, and special representation of property interests. Higinbotham retorted that 'the most complete equalisation of political rights' came from recognizing that rich and poor had an equal stake in good government, whereas the representation of minorities would favour the rich. He also opposed (Sir) John O'Shanassy's conservative scheme for the 'excessive multiplication of small constituencies', warning that it would make elected members mere delegates of 'local prejudices and local rapacity' thus encouraging 'bawling demagogues' to win votes by 'extravagant flattery'.

In the Argus and later in the assembly Higinbotham held that parliamentarians should vote on every issue by conviction, not in deference to their party or constituents but in support of competent and honest government. Party bonds were 'factious' and impeded the exercise of private conscience. In practice his fidelity to this principle became paralysing and led him to retire from politics. Disapproving (Sir) Graham Berry's stonewalling tactics, yet convinced that McCulloch was actuated by 'shameful' place-seeking which led him to enact 'a naked farce', Higinbotham could support the actions of neither: nor could he overlook his differences with the party he preferred, for this would be taking a party line. His principles forced him into inaction and resignation, despite requests that he become leader of the Liberal Party.

As attorney-general he had side-stepped this dilemma. Although theoretically opposed to party government, he had kept in office a heterogeneous ministry, the longest since responsible government, and united his followers against the common enemy, the Legislative Council. He was satisfied that the issue, not party loyalty, won him support. His personal wars against the council and the Colonial Office's ill-informed interference with domestic affairs were part of his strategy to make the Legislative Assembly supreme in Victoria. He seized on any challenge to responsible government and any ambiguities in the 1855 Constitution Act to establish precedents in the development of colonial democracy; whether or not he was always legally sound is still not settled by constitutional historians.

In 1864 he reprimanded Sir Redmond Barry for informing the governor of his intention to take a holiday. 'No officer in his department', said Higinbotham, should communicate directly with the governor on official business. In that year he also clashed with Chief Justice (Sir) William Stawell who disagreed with his ruling that the Executive Council was entitled to suspend judges. The imperial law officers upheld Higinbotham but, less concerned with personal victory than with interference from the British ministry, he advised the judges that the decision was 'in no way binding'. He was jealous of the independence of the judiciary except when it conflicted with the independence of the colonial government.

His militant resistance to imperial incursions into domestic affairs was matched by an equal determination that the colonies respect their obligations to the imperial government and to the governor as its sole agent in imperial affairs. In such cases the governor ceased to be responsible to his colonial ministers and, wearing his other hat, was solely responsible to the imperial government.

An opportunity to show the distinction arose in January 1865 when the Shenandoah, calling itself a Confederate ship, sought permission to berth at Hobson's Bay for coal and repairs. In an unaccustomed alliance with Melbourne's upper crust, who entertained the ship's officers at the Melbourne Club, Higinbotham advised against the United States consul's request that the ship be seized as a pirate. The United States held Britain responsible for the damage later done by the ship and a tribunal at Geneva in 1872 awarded $15,500,000 for damages done by the vessel. Higinbotham explained that the governor had been answerable to Britain in this dispute and that the ministers, acting merely as advisers, were not responsible for the governor's decision and were therefore not bound to resign if he had rejected their advice.

Higinbotham's principles were again tested in the dispute between the assembly and the council over the so-called protective tariff of 1865. Higinbotham, professedly a free trader, denied that the measure was based on protectionist principles. It merely altered the list of goods dutiable for revenue and was not designed to protect home industries. Protectionists wanted a stronger measure while free traders claimed that the bill contravened their principles. For Higinbotham their argument was a mere 'intellectual puzzle'—a quibble. He predicted that the council would reject the measure, not on principle but out of self-interest, and so advised the ministry to attach it to the appropriation bill.

In the ensuing deadlock between the Houses, Governor Sir Charles Darling used a legal trick to pay public expenses. He borrowed from the London Chartered Bank which sued for repayment and the Crown offered no defence. After elections in which the ministry was supported, and after conferences between the assembly and council (from which Higinbotham was excluded), the appropriation bill was passed on 17 April 1866. On that day Darling received his recall for having expressed disapproval of the Opposition and for raising money by methods of doubtful legality, in both of which Higinbotham had been his mentor.

The removal of Darling rekindled the constitutional struggle. In May 1866 the Legislative Assembly voted £20,000 to Lady Darling and prepared an address of sympathy and gratitude to her husband. The first deadlock ended just in time to make way for the second. After the council rejected the appropriation bill including the Darling grant, parliament was dissolved in August 1867 and the ministry was again returned. Months of confusion followed. The new governor, Manners-Sutton, was tactlessly advised by the Colonial Office not to recommend the grant to the legislature; the government resigned and was followed in May 1868 by the Sladen ministry. Without a majority it resigned in July. The McCulloch ministry then resumed office, but Higinbotham refused to be attorney-general, explaining in December 1869 that he could not hold office in a ministry that prevented him from submitting his case on colonial independence.

Until his final retirement from the assembly Higinbotham remained uncertain about how to reduce the council's powers. He criticized proposals for reducing the property qualifications of electors and members of the council, maintaining that such reductions would not curb the powers of the council but only strengthen it, since it could claim to be more representative while still not being truly responsible. James Francis's 'Norwegian Scheme' of April 1874, to force the two Houses to sit jointly after the council had rejected a bill in two consecutive sessions, exposed Higinbotham's uncertainty. He criticized the measure and suggested that Victoria would be ideally suited to a one-House system because it lacked an hereditary nobility and antagonistic social classes, but he recognized that the time was not ripe.

Meanwhile in 1869 Higinbotham had defined colonial responsible government with clarity and force. His five resolutions, all passed by the assembly, were provoked by conservative Victorian colonists in London who had called a conference on colonial affairs. Incensed at this interference of an 'irresponsible' body of expatriates, he was impelled to clarify the position after a debate on 8 May 1868 in the House of Lords where six of the seven speakers had implicitly denied the existence of responsible government. Only Lord Chancellor Cairns affirmed the principle that Higinbotham held sacred: 'If it was to be laid down … that the Secretary of State at home was to hold in leading strings the Ministry of the Colony, then the pretence of free colonial institutions was simply a delusion and a mockery'.

Sensing a direct challenge to colonial independence, Higinbotham declared in his resolutions that the London conference should not be sanctioned, that Victoria wished to remain within the empire, that imperial legislation should not interfere with the colony's internal affairs, that the Colonial Office had no right to advise or instruct the governor on domestic issues but could merely advise on the royal assent to colonial bills, and that the assembly should support the ministry in designing measures to establish the independence of the colonial legislature. He asserted that Victoria had never had responsible government because of the anomaly that a 'foreign minister' advised the Crown to accept or reject colonial legislation.

The secretary of state for colonies, he said, was less to blame than 'the chief clerk of the Colonial Office'. The Colonial Office, like the Athenian democracy, 'was governed by the poodle dog of a courtesan'. The dog engrossed the courtesan, who engrossed her lover, 'and the lover ruled the fierce democracy'. Similarly 'the million and a half of Englishmen who inhabit these colonies … have really been governed … by a person named Rogers'. As a member of the empire Victoria had to control its own defences but had no right to negotiate with foreign nations. In domestic affairs, however, the colony should have complete autonomy as a responsible government. Ministers should deal directly with the appropriate imperial ministers, not through the Colonial Office which was 'a mere straw image of official intrigue, and unlawful arbitrary interference'. 'If you reason with it, you degrade yourselves. If you go to it, and strike it in the face with the back of your gloved hand, you will see it tumble in a heap at your feet'.

Higinbotham also attacked what he called illegitimate instructions to governors empowering them to use, regardless of ministerial advice, the prerogative of mercy in capital punishments. In 1874 Carnarvon ruled that the governor had the right to a final decision only after seeking written ministerial advice but Higinbotham still denounced the instruction as 'a glaring instance of … flagrant illegality' which in practice 'could not be obeyed'.

Invited in 1880 to become a Supreme Court judge, he wrote to the premier, James Service, about the governor's instruction to call on the judge to report in writing on any case of capital punishment and to appear before the Executive Council. Higinbotham claimed that the Queen had no power to issue this instruction, and that he would 'officially and openly refuse to comply … and would pray that the commands of the Crown for my assistance … should be conveyed to me through and in accordance with the advice of Her Majesty's Advisers for Victoria'. His stand on this question was a sequel to his earlier battle with the judges. The conditions he laid down were tested four years later. In May 1884, after sentencing Henry Morgan to death for murder, he refused to report to the Executive Council unless requested by the attorney-general. As attorney-general Higinbotham had insisted on the answerability of judges to him: twenty years later as a judge the position was reversed and he insisted on his answerability to the attorney-general. In both cases his principle was upheld.

On a similar principle he insisted that the governor should refuse to inform the Colonial Office on domestic policy. When he became chief justice he should have become administrator in the governor's absences, but he made it clear that as acting governor he would act on this principle. He was therefore by-passed. The insult was never remedied but gave rise to much correspondence with the secretary of state for the colonies whom he successfully convinced in 1892 that the governor's instructions should be redrafted to meet his objections.

As chief justice, Higinbotham still saw himself as a liberal politician who should exploit any legal case that furthered responsible government. The opportunity arose most clearly in Toy v. Musgrove, a case involving Chinese immigration and Victoria's power to exclude aliens. The collector of customs, Musgrove, refused entry to Chinese passengers in the British ship Afghan when it arrived at Melbourne in 1888. Toy brought an action against Musgrove to the full Supreme Court. The defence argued that, under a law restricting Chinese immigration, the governor and the ministry had acted properly. Higinbotham maintained that, since no international law conflicted with Victoria's legislation, the governor had to act as the 'local sovereign'. A lengthy argument then raged around what constitutional rights the governor and his ministry did have. Mr Justice (Sir) Hartley Williams, with some regret and sense of shock, concluded that Victoria had neither the legal right to restrict immigration nor the constitutional justification for claiming responsible government. 'I awake to find', he concluded, 'that we have merely an instalment of responsible government'.

Zelman Cowen says that the case 'must be almost unique in the law reports' in providing 'an elaborate examination of the scope and nature of responsible government', and it gave Higinbotham 'a unique opportunity to expound his political philosophy'. Higinbotham, however, often outvoted on the bench, carried only one of the five judges with him. When Musgrove appealed to the Privy Council it ruled that common law supported Victorian law and aliens had no enforceable right to enter British territory. The constitutional question was thus avoided.

Higinbotham's persistent battle for colonial independence in domestic affairs was equalled by his insistence on Victoria's imperial dependence in foreign affairs. To many his position was paradoxical and ran counter to the nationalistic spirit that soon culminated in Federation. When in 1883 Queensland took possession of south-eastern New Guinea in the name of the Queen, Higinbotham justified the annexation, not as a ministerial decision, but as an act of the governor for the imperial government with no legal effect until ratified in Britain. In the event Queensland's possession was disallowed in London but colonial pressure led to the proclamation of a protectorate in 1884.

In July 1883 at a public meeting Higinbotham had moved that the Crown should annex New Guinea and the New Hebrides to protect them from receiving criminals from other European nations and from recruiting native labour for Queensland, a traffic which savoured of slavery and which that colony's government could not control. All civilized nations, he said, had a right to annex unoccupied territory, though he admitted that he did not fully understand how the right originated or could be defended. However, by 1885 Higinbotham was describing all annexation as the act of 'robbers' justified solely by 'priority of possession'. The Colonial Office could have settled the problem by acceding to colonial requests or by rejecting them, thus forcing the colonies to decide whether to leave the empire. Instead it 'vacillated' and compromised while Germany annexed northern New Guinea. The colonies continued to press their claims without being forced to face the international responsibilities of independence from Britain. This temporizing Higinbotham described as 'the imbecility of the Colonial Office' which produced in Germany 'a just sense of distrust'.

Alfred Deakin saw the protests at England's inaction as a possible prelude to Federation, but to Higinbotham that movement was a 'dangerous mode of thought or rather no thought'. Although not necessarily opposed in principle to Federation, he saw in the negotiations the danger of a compromise in which rights, wrested from the imperial government over thirty years in interpreting the Constitution, could be reversed. Rather than risk the loss of democratic achievements, he would have postponed Federation 'to the date of the Greek Kalends'. He also feared its connexion with republican sentiment, which he thought people of understanding would reject 'for better reasons than the feeble sentimentalism which now seems to be the sole tie between Great Britain and its self-governing dependencies'. He wanted the colonies to continue the existing union with Britain and avoid 'the heavy burdens and the tremendous risk entailed by separation'.

As politician and judge, Higinbotham's dedication to democracy sprang from concern not only with constitutional forms but also with giving an equal voice to the underprivileged. Early he had seen individualism as the means to this end, but experience led him to recognize the need for collective action. While editor of the Argus he had scouted the idea of labour representatives in parliament, believing that all men were one and could be relied on to care disinterestedly for the rights of the worker. By 1890, however, he felt impelled to subscribe to the maritime strike funds, less out of concern about the rightness of the strike than about the employers' refusal to negotiate. He saw the unionists fighting with unequal odds against entrenched interests. Diehards demanded that the artillery should drag him from the Supreme Court and shoot him, and critics accused him of impropriety in using his official title in his letter to the Trades Hall, but to this day the Seamen's Union lays a wreath on his statue on each anniversary of his death. In the Argus Higinbotham had supported the Eight Hour Movement and later endeared himself to the labour movement. In 1884 he was guest speaker at the opening of the Trades Hall Council Chamber, where his portrait was hung above the president's chair.

Higinbotham's support of the working man sprang from respect and affection evinced in his lack of snobbery that mixed strangely with his courtly and elegant manners. Women were among the underprivileged whom he defended: in 1873 he excited ridicule from the press by advocating the female franchise. The Australasian scoffed, 'Mr. Higinbotham can surely not desire to see the denizens of Little Bourke Street or Romeo-land brought in cabs full to the polls', and begged him to leave alone 'our monopoly of our wives and daughters'. At the royal jubilee in 1887 he used the occasion to express his regard for the Queen and thus to expound his views on women's rights. He did not regret that the 'age of chivalry with all its foolery is past', but 'the age of true honour for women' had not yet fully come. Higinbotham was ever chivalrous to women and personally content that they should have it both ways.

Undoubtedly Higinbotham had more than a touch of the ascetic and the Puritan. He became president of the Permissive Bill Association which campaigned for legislation to restrict the sale of liquor by local option. This issue diverted the energy of many churchmen, and even of Higinbotham, when popular opinions on education were being tested in the 1871 election. In 1873 he argued in parliament for a permissive bill, already twice rejected by the council, as one which would empower the majority to compel the minority to prohibition. The Australasian accused him of being the 'infallible Pope' establishing a 'moral dictatorship'. In 1881 when the association was superseded by the Victorian Alliance, he was invited to become its president. He declined because he believed that the president should be in parliament, able to organize public opinion in every recess and to bring forward a bill 'session after session'. He was not a fanatical teetotaller but, like many nineteenth-century radicals, he argued that those who tried to remove the 'thraldom' of liquor were 'the truest friends of the working millions' and 'at the foundation of all social and political reform'.

Convinced that men should be protected from the temptation to gamble, Higinbotham attacked raffles at a ladies' bazaar in 1866: Melbourne Punch retorted with a cartoon, 'The Puritanical Prig'. He disliked, even more than gambling, public displays of charity. His grandson, the late Charles Reade, believed that one reason why he left instructions with his wife to destroy all his private papers at his death was to conceal the extent of his private gifts. His ready response to public charities and his private generosity were well known. His son-in-law recalled Higinbotham's belief in the rule, 'Give to him that asketh'—a rule that led his fellow barristers to protest against the procession of undesirable persons to his chambers.

While many legal colleagues made large fortunes, Higinbotham never acquired great wealth. His charges were modest, according to Theodore Fink, 'probably less than half of that of others of his time'. He disapproved the extra salary of £500 more for chief justices than puisne judges, and so he set it aside to provide festive dinners for his colleagues every year. As a barrister he would not defend a case unless he believed in it, but he could be stern and his cross-examinations were said to be 'deadly enough to make villains tremble'.

Always the scholar, he was painstaking and even laborious in his hearing of cases, while his judgments exhibited lucidity, elegance and usually economy. As attorney-general, royal commissioner and judge he was an indefatigable worker, often working into the early hours and then sleeping in his rooms. Possibly the greatest monument to the demands he made on himself was his consolidation of the statutes as attorney-general in 1865 and again as chief justice in 1890. For his efforts he gained the rare honour of thanks of both Houses. After being slighted over the acting governorship, Higinbotham must have enjoyed wry pleasure in this public compliment and in refusing a knighthood, which he described as a 'base, contemptible distinction' that merely gave a man 'a handle to his name'.

Ironically Higinbotham tended to blame himself for exhibiting too little of what his critics described as an excess of fixity of purpose. In his 1884 address to the Trades Hall he remarked that 'stubborn adherence to principle was the most honest expression of a politician's view' and 'experience has led me to the conclusion that almost all compromises, almost all concessions … are so many abandonments of principle'. No doubt he had in mind his own political shifts over such policies as land reform. His doggedness in fighting the Legislative Council after the deadlocks wearied some politicians, and as judge his persistent battle with the imperial government for an irreversible definition of responsible government irked some legal colleagues.

Yet opponents and admirers alike respected his probity, and most succumbed to his kindliness, charm and personal magnetism. William Shiels wrote: 'I really loved him. I never knew a more knightly nature than his: and yet it was a unique one, too, from its almost weird blend of contraries'. Shy yet firm, gentle yet ferocious, personally courteous yet impersonally acrimonious, he was indeed a puzzling mixture. His oratory only Deakin, his disciple, could rival. Speaking with a softly modulated Anglo-Irish voice, Higinbotham began his speeches shyly and hesitatingly until under the compulsion of his logic and rhetoric he was carried often to impassioned heights. Deakin described his speeches as 'slow', 'grand', 'stately and impressive with … dignity in style and grace of phrase, yet terribly intense and effective' in his 'admirable climaxes'.

Deakin also recalled his 'cherubic' manner, his 'mildness and sweetness', and his profile 'cameo-like in its delicacy, and clear blue eyes, still, calm and far-seeing when not ablaze with passion'. His granddaughter Hilda Morris never forgot his chiding her for looking into a private garden. 'Ever since then', she writes, 'I have looked straight ahead and respected privacy' and here perhaps is the true explanation for the destruction of his private papers.

This most loved and most hated politician was 'the red radical' or, as Shiels assessed him, Australia's 'noblest if not its greatest man', according to the point of view. For Price Warung he was 'the greatest of Australia's dead' who 'won from privilege and class ground they have never since been able to recover'.

Warned against over-exertion in his last years, Higinbotham characteristically ignored the advice, asking his doctor only to tell him frankly if his mental powers were at all impaired. He died on 31 December 1892, survived by his wife, two sons and three daughters. At his request he had a private funeral.