Definition
An archaic legal term with two related meanings: (1) the wages, commission, or fee paid to a broker for services rendered in facilitating a transaction between parties; and (2) the occupation or business of acting as a broker. The term is functionally synonymous with the modern "brokerage" and appears in historical legal materials, particularly those touching English and Scots law.
Common Language
Modern common usage (Wiktionary): Obsolete form of "brokerage."
Historical common usage (Webster's 1913): See "brokerage" — Webster's redirects the entry entirely, treating brocage as a variant spelling rather than an independent term.
The gap here is one of survival rather than meaning: common usage abandoned the word entirely, while legal sources preserved it in historical texts longer than popular usage did. A researcher encountering "brocage" in an old legal instrument should read it as "brokerage" without any divergence in substantive meaning.
Common Confusion
Brocage should not be confused with "brocardic" or "brocard" (a maxim or legal axiom), which share a superficially similar root but are unrelated in meaning. Researchers scanning older indices or digests may encounter the terms in proximity; they refer to entirely different concepts.
Why It Matters in Research
This term is a spelling and period marker more than a substantive legal concept. Its primary research value is navigational: encountering "brocage" in a document signals that the source is English or Scots in origin and almost certainly pre-nineteenth century. By the time American legal practice was producing its own primary sources, "brokerage" had become standard, and "brocage" had retreated to historical legal dictionaries and old pleading forms.
Researchers working in early English commercial law, medieval mercantile records, or Scots legal history should note that Black's first edition cross-references the related terms "brocarius" and "brocator" — the Latin and old English forms for the broker himself (the agent), as distinct from brocage (the fee or trade). These distinctions matter when parsing historical instruments: the document may speak of the brocage owed, the brocarius who earned it, or both.
In corpus research, inconsistent historical spelling is the principal trap. Variant forms include "brocage," "brokage," and "brokerage," and early printed sources may use any of them without distinguishing between the fee and the occupation. A search for brokerage disputes in historical English commercial materials may need to run against all three spellings to capture the full record.
Historical Dictionary Support
Both editions of Black's are in close agreement: brocage means the broker's compensation and, secondarily, the broker's trade. The first edition adds the richer historical gloss, citing Bell and Cowell for the related agent-forms (brocarius, brocator) and explicitly situating the term in old English and Scots law. The second edition strips this context and offers a leaner, more formulaic entry — a pattern consistent with the second edition's general compression of historical detail.
Neither edition offers substantive treatment of what the fee covered, how it was calculated, or under what circumstances it was legally recoverable. For those questions, researchers must move beyond the dictionary to treatises on agency and commercial law. Cowell's Interpreter is the most directly cited authority for the historical forms, and Bell's Dictionary and Digest of the Law of Scotland provides the Scots law grounding.
What the historical dictionaries miss entirely is any treatment of disputes over brocage — whether a broker had earned the fee, whether it was forfeited by misconduct, or how courts assessed it. The dictionary entries treat the term as definitional rather than doctrinal, which reflects its status as a period relic rather than a living legal category by the time Black's was compiled.
Jurisdictional Note
Brocage as a term of art belongs to English and Scots legal tradition. American legal sources use "brokerage" exclusively. Researchers encountering "brocage" in an American document should treat it as a deliberate archaism or a copying error from an English form, not as a term carrying independent American legal meaning.