You can usually produce an example of an eggcorn by taking a common idiom or collocation, and inventing a different word sequence with a similar sound. If the substituted words have relevant meanings, so much the better; and if the original collocation is archaic or otherwise non-compositional, that improves the chances still further. Using this method, I created the candidate eggcorn "malicious forethought", from the legal term "malice aforethought". Google has 2,990 hits for "malicious forethought", and 21,400 hits for "malice aforethought", so it looks like we have a winner.
However, it's not so simple. One of ghits for the putative eggcorn is in the entry for kill in Webster's Revised Unabridged Dictionary (1913): "To murder is to kill with malicious forethought and intention." What's going on here? Is it possible that "malicious forethought" is not really an eggcorn?
The OED's definition for murder cites "the unlawful killing of a human being with malice aforethought; often more explicitly wilful murder." Overall, the OED has 10 full-text matches for "malice aforethought" in the 2nd edition, and 9 more in the new edition; with no matches at all for "malicious forethought".
In the entry for aforethought, the OED gives the etymology as a calque of an Old Law-French term:
[f. AFORE adv. + thought: see THINK. Apparently introduced as an English translation of the Old Law-Fr. prepense in malice prepense.]
The OED's entry for malice has an etymological narrative that is consistent with this but a little more complicated:
[< Anglo-Norman malice, malise, malisce, Old French, Middle French, French malice (12th cent. in senses 1a, 3, and 5, 1314 in sense 4a, 16th cent. in sense 1d, 17th cent. in sense ‘desire to tease’: see sense 1a) < classical Latin malitia < malus bad (see MAL-) + -itia -ICE.
With malice aforethought (see sense 2), cf. post-classical Latin malitia excogitata (1235, c1323 in British sources), malitia preconcepta (c1300, 15th cent. in British sources), malitia precogitata (1304, 1391 in British sources). With malice purpensed (see sense 2) cf. Anglo-Norman malice purpensé.]
Webster's 2nd defines aforethought adequately, with a reference to the relevant legal term: "Premeditated; prepense; previously in mind; designed; as, malice aforethought, which is required to constitute murder. Bouvier."
Webster's 3rd (1961) seems to have thought better of the "malicious forethought" business. In its entry for kill, says "MURDER implies motive and usu. premeditation in a criminal human act", dispensing entirely with any morphological derivatives of malice. As far as I can tell, the phrase "malicious forethought" does not occur anywhere in the text of the 3rd edition. I qualify this statement because the only on-line search available to me is via a ProQuest service, offering something called a "keyword search" that in other tests seems willing to find words strings in the middle of entries, but turns up nothing for "malicious forethought". In any case, the 3rd edition's entry for aforethought is significantly more complete than in the 2nd edition:
[malice aforethought trans. of AF malice purpensee; malice prepense alter. of earlier malice prepensed (trans. of AF malice purpensee), fr. E malice + obs. E prepensed premediated --- more at PREPENSE]
: deliberate malice : premeditated malice
specif : malice in fact or implied malice in the intention of one who has had sufficient time to act with premeditation in the doing of something unlawful (as in doing serious bodily harm to another person or as in murdering another person)
To sum up, it seems that the redoubtable 1913 Webster's Unabridged really did perpetrate an eggcorn. However, this is a very strange case, since the "mistaken" phrase means essentially the same thing that the "correct" one does, and has the extra advantage of being compositional in contemporary English.
In the technical jargon recently invented for the purpose, the count of 2,990 Google hits for malicious forethought translates to 698 whG/bp (web hits on Google per billion pages), while malice aforethought's 21,400 ghits is 4,994 whG/bp.
[Update: 6/10/2004: Elissa Flagg emailed to point out another variant, "malice of forethought". She observes that "It has a relatively small number of Google instantiations at 533 (most of which are in reference to legal proceedings, although several seem to be about a punk/metal band of that name), but it's the version I've always thought I was hearing." ]
[Update 2/25/2005: Andrew Gray emailed with yet another variant: "malice and forethought", which he observed in an IM conversation. There are 880 Google hits for this version, though some of them seem to fully compositional cases for which "malice aforethought" could not be substituted (e.g. "Malice and forethought, the essentials of an evil will, were shown not to be necessary for organizing and structuring the machinery for the efficiency of the death camps. ") Like "malicious forethought", this is an especially tricky example since it has an entirely appropriate compositional meaning in most contexts in which it might be substituted for "malice aforethought", and is blocked only because of the prior existence of the almost-homophonous phrase. ]
Posted by Mark Liberman at June 9, 2004 05:01 PM