In January 1865, the visit of the U.S. confederate cruiser "CSS Shenandoah" placed the government in a difficult position, and it has sometimes been assumed that the advice of Higinbotham (to not support the U.S. consul's request that the ship be seized as a pirate) as attorney-general must have been faulty in view of the subsequent arbitration proceedings going in favour of the United States. The voting, however, of the arbitrators was three to two, and one of the three appears to have given his decision with some hesitation. Higinbotham did not return to power with his chief, Sir James McCulloch, after the defeat of the short-lived Sladen administration; and being defeated for Brighton at the next general election by a comparatively unknown man, Sir Thomas Bent, he devoted himself to his practice at the bar.