The Great Rabbit Massacre - A "Comedy of the Commons"? Custom, Community and Rights of Public Access to the Links of St Andrews

In the US courts and legal scholars have rediscovered the English doctrine of custom. In her essay ``The Comedy of the Commons: Custom, Commerce, and Inherently Public Property'', Professor Carol Rose argues that customary uses of recreation lands should be upheld by courts because the highest value of such land is achieved by keeping them open to the public. Rose relies in her argument on the English doctrine of custom, but the doctrine of custom legitimates local not public use. British legal history, however, provides an example of such a ``public'' common in the Links of St Andrews. In the case Dempster v. Cleghorn, the golfing public sought to vindicate their customary right to the maintenance of golfing ground as it had been ``in all times past''. This article examines the case of Dempster, and the consequent riot, and asks whether it was a ``comedy of the commons''. It concludes that despite ten years of litigation and the extirpation of the Dempsters' warrened rabbits, the case nevertheless is a ``comedy of the commons'' that provides a model of the meditation of public use by local custom and community.[PUBLICATION ABSTRACT]