Free FISHERY, in law, or an exclusive right of fishing in a public river, is a royal franchise; and is considered as such in all countries where the feudal polity has prevailed: though the making such grants, and by that means appropriating, what it seems unnatural to restrain, the use of running water, was prohibited for the future by king John's Great Charter; and the rivers that were fenced in his time were directed to be laid open, as well as the forests to be disforested. This opening was extended by the second and third charters of Henry III. to those also that were fenced under Richard I.; so that a franchise of free fishery ought now to be as old at least as the reign of Henry II. This
differs from a several of fishery, because he that has a several fishery must also be the owner of the soil, which in a free-fishery is not requisite. It differs also from a common fishery, in that the free fishery is an exclusive right, the common fishery is not so; and therefore, in a free fishery, a man has a property in the fish before they are caught; in a common fishery, not till afterwards. Some indeed have considered a free fishery not as a royal franchise; but merely as a private grant of a liberty to fish in the several fishery of the grantor. But the considering such right as originally a flower of the prerogative, till restrained by Magna Charta, and derived by royal grant (previous to the reign of Richard I.) to such as now claim it by prescription, may remove some difficulties in respect to this matter with which our law-books are embarrassed.