FREE FISHERY - The Law Mind Legal Dictionary

FREE FISHERYAuthored

The Law Mind • 996 words

Definition

A free fishery is an exclusive right to fish in a public navigable river or arm of the sea, held by a private subject by virtue of a royal grant or long-standing prescription. It is a franchise — a species of privilege derived from the Crown — and it exists independently of any ownership of the riverbed or adjacent soil. The holder of a free fishery enjoys an exclusive entitlement to take fish from waters that remain public, meaning no competing right of the general public or riparian landowners can defeat that exclusive use within the franchised waters.

The term belongs to the law of fisheries, which English common law divided into three principal categories: free fishery, common of fishery, and several fishery. A free fishery is distinguished from a several fishery (which typically implies ownership of the soil beneath the water and full exclusive rights) and from a common of fishery (a right to fish in another's waters in common with others, including the owner). A free fishery grants exclusivity without soil ownership and operates in waters that are otherwise public.

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Common Confusion

FREE FISHERY vs. SEVERAL FISHERY vs. COMMON OF FISHERY: These three terms are routinely conflated, and the confusion is old enough that historical sources themselves are not always consistent. The critical distinctions: a several fishery typically carries with it (or presupposes) exclusive possession of the fishery to the exclusion of all others including the owner of the soil, and is sometimes associated with soil ownership; a free fishery is exclusive but operates in public navigable waters without any claim to the soil; a common of fishery is a non-exclusive, shared right. Researchers encountering these terms in older English grants or American property disputes should not assume they are interchangeable — courts have treated the distinctions as legally operative, though American jurisdictions have not always adopted English classifications uniformly.

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Why It Matters in Research

Free fishery is primarily a term of English property law with only limited survival in American jurisprudence, which makes corpus navigation non-obvious. Several traps await the researcher:

First, the term belongs overwhelmingly to English legal history. American courts addressing fishing rights in navigable waters developed their own doctrines grounded in public trust principles, riparian rights, and state ownership of navigable waters — frameworks that do not map neatly onto the English franchise model. When free fishery appears in American cases, it is almost always in historical discussion of inherited English common law principles or in disputes over colonial-era grants.

Second, the word "free" is misleading to modern readers. In this context, "free" does not mean open to the public or without restriction — it means the opposite: a private exclusive right, held free of interference. Researchers using keyword searches will encounter massive false-positive hits from unrelated uses of "free" in legal texts.

Third, the franchise dimension matters for constitutional research. In English law, a free fishery was a royal franchise — analogous to other incorporeal hereditaments held by royal grant. American constitutional questions about whether legislatures could abrogate such grants implicate Contracts Clause analysis and the broader public trust doctrine. These connections are not always flagged in secondary sources.

Fourth, Bouvier's entry simply redirects to FISHERY without elaboration, which means any researcher working through Bouvier alone will miss the franchise-specific character of free fishery and may underestimate how it differs from adjacent concepts.

Fifth, American treatment of navigable waters after the federal public trust doctrine hardened in the nineteenth century largely displaced the English franchise model. What would have been a free fishery in England became, in most American states, a question of state ownership of the beds of navigable waters and public rights of fishing — making the term's practical legal relevance in American courts quite narrow outside of historical analysis.

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Historical Dictionary Support

Black's Law Dictionary defines free fishery as a franchise in the hands of a subject, existing by grant or prescription, distinct from ownership in the soil — an exclusive right applying to a public navigable river without any right in the soil. Black's cites Kent's Commentaries for this formulation.

Burrill's Law Dictionary is the most detailed of the three shelf sources and correctly identifies the French and Latin antecedents (fraunche pescherie; libera piscaria) and grounds the definition firmly in the franchise character of the right — an exclusive fishing right in a public navigable river or arm of the sea originating in a royal grant. Burrill cites Blackstone's Commentaries and Stephens' Commentaries, as well as Chitty's General Practice, giving the researcher useful lines of authority for further pursuit.

Bouvier simply cross-references FISHERY without independent treatment, which is unhelpful for anyone trying to distinguish free fishery from related fishery concepts. This is a meaningful gap: researchers relying on Bouvier for this term will need to supplement with Burrill or Black's.

The shelf sources converge on the core point — exclusivity without soil ownership, franchise origin — but none of them adequately addresses how American law absorbed, modified, or discarded these English categories. That gap is significant and requires recourse to treatises (Kent's Commentaries, cited by Black's, is the most useful American bridge) and to case law in states with colonial-era grants or substantial riparian litigation.

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Jurisdictional Note

Free fishery as a distinct legal category is essentially an English common law concept. American states vary considerably in how far they adopted English fishery law classifications; most states with substantial navigable water litigation developed independent frameworks grounded in the public trust doctrine and state ownership of navigable waterbeds. Louisiana, with its civil law tradition, applies entirely different principles. Researchers should treat English authority as persuasive background rather than controlling precedent in any American jurisdiction.

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FREE FISHERYmain

Black's Law Dictionary • 1891

A franchise in the hands of a subject, existing by grant or pre- scription, distinct from an ownership in the 4. Available to all citizens alike without soil. It is an exclusive right, and applies to charge; as a free school. a public navigable river, without any right 5. Available for public use without charge in the soil. 3 Kent, Comm. 410. or toll; as a free bridge. 6. Not despotic; assuring liberty; defend- ing individual rights against encroachment by any person or class; instituted by a free people; said of governments, institutions, etc. Webster. 7. Certain, and also consistent with an honorable degree in life; as free services, in the feudal law. 8. Confined to the person possessing, in- stead of being shared with others; as a free fishery. 9. Not engaged in a war as belligerent or ally; neutral; as in the maxim, "Free ships make free goods.”

FREE FISHERYmain

Burrill's Law Dictionary • 1867

[L. Fr. fraunche pescherie; L. Lat. libera piscaria.] In English law. An exclusive right of fishing in a public river, being a species of royal franchise. 2 Bl. Com. 39. 2 Steph. Com. 22. An exclusive right of fishery in a public navigable river, or sometimes in an arm of the sea, originating in a grant from the king. 1 Chitt. Gen. Pr. 224.-An exclusive right to fish in any public water, as in an arm of the sea. 1 Crabb's Real Prop. 114, § 108. See 3 Kent's Com. 410. In American law, the definition of a free fishery does not seem to be settled. In Massachusetts, it has been held not to be an exclusive right. 7 Pick. R. 79. See Angell on Water-Courses, §§ 75, 76. **That free fishery properly imports an exclusive right, seems apparent from the well-settled meaning of the term free in the common law, as explained under that head. See Free. By using free, however, in its popular sense of common, free fishery has sometimes been made identical with common fishery, or a right of fishery common to all. This opinion is maintained by Mr. Schultes, in his Essay on Aquatic Rights, in which he also endeavors to show that free fishery and common of fishery (a still different species of the right,) import the same thing. Lord Coke is relied on in support of this last view, and Mr. Hargrave supposes the following passage from Coke Littleton to establish it: "So a man may prescribe to have separalem pischariam, [a several fishery] in such a water, and the owner of the soil shall not fish there; but if he claim to have communiam pischariæ, [common of fishery,] or liberam pischariam, [a free fishery,] the owner of the soil shall The passage hardly seems to warrant the inference drawn from it. The opinion of Lord Mansfield, in Seymour v. Lord Courtenay, is also considered by Mr. Schultes as favoring his view that free fishery and common of fishery are alike. But that opinion only went the length of distinguishing a several from a free fishery, and the remark of Lord Mansfield, at the conclusion, shows that he regarded a common of fishery as quite a different thing from either. 5 Burr. 2814, 2817. See Yearb. M. 4 Edw. III. 38. That a free fishery signifies an exclusive right, seems to have been assumed by the court, (Lord Holt, C. J.) in Smith v. Kemp, where it is clearly distinguished from a common fishery. 1 Salk. 637. What is said by Lords Coke and Mansfield, (ubi supra,) merely goes to show that it is not so absolutely and rigidly exclusive as a several fishery, (the owner of which had it literally to himself,) but that it might or must be shared by another. The true idea of a free fishery seems to be, a franchise or monopoly which may be held by two or more, as well as a single individual, but which, in either case, is equally exclusive of the common right.

FREE FISHERYcrossref

Bouvier's Law Dictionary • 1928

See FISHERY.

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