The court · Bretha Étgid, “Judgments of Inadvertence”, and Heptad 6, as Kelly gives them, law-texts of the 7th and 8th centuries

The Stone at the Ford

A man with an intellectual disability throws a stone, and it strikes a passer-by. Who pays for the wound?

Basis. Rests on Kelly’s account of the law, not on the Old Irish text itself. Open questions are set out below.

Topics: Injury, Accidents, Kin.

This case is about people with intellectual disabilities and mental illness in early Irish law. It gives the Irish terms of the law-texts and the English ones of the 1988 book we follow. Some of those English words are offensive now.

The scene Our telling

Every fine morning Odrán went down to the ford and threw stones into the river. He was a grown man and a strong one. From a child he had not understood the world as other people did, and he lived in the house of his brother Fergal, who answered for him. He liked the splash. The whole neighbourhood knew to go wide of the ford while he was at it.

Dúngal, from the far side of the hill, did not know. He came down the road, saw a big man on the bank throwing stones, and walked on toward the crossing. One stone went wide of the water and opened his brow to the bone.

Fergal came running. Odrán stood with a stone still in his hand and wept, because the man was bleeding. Dúngal held his cloak to his head and said that somebody was going to pay for this, and he looked at Fergal when he said it.

What would you decide?

Answer first, then read the law. Your first answer is the one kept. It is stored only on this device.

On Kelly’s account of the rule, who must pay Dúngal for the wound?

Choose an answer and open it to see what the law says of it. Then read the law below.

Fergal, who is Odrán’s guardian and answers for what he does.

This answer differs from the law as Kelly sets it out. That is the general rule, and it would be the answer for most things Odrán might do: the guardian answered for what a person of unsound mind did. But Kelly gives the thrown missile as a case where the law went easier, and nothing was owed.

Odrán himself, out of whatever he has that is his own.

This answer differs from the law as Kelly sets it out. Kelly names two people who might pay for what an insane person did: the guardian, or someone who incited him. The man himself is not one of them, and in Heptad 6 he is exempt. For a missile he threw, Kelly says, nothing was owed.

No one. It counts as an accident, and a passer-by had to keep clear.

This matches the law as Kelly sets it out. On Kelly’s account nothing was owed when a drúth threw something and it hurt a person. He thinks it plain that the passer-by was the one who had to stay out of range, and in his chapter on offences he says the law treated such a hurt as an accident. Nobody had urged Odrán to throw. If someone had, that person would have paid.

Read the law, the commentary and the sources

The law

The law, as Kelly gives itThe law-texts have many words for persons of unsound mind, and Kelly says the meaning of the three commonest seems clear. The dásachtach has manic symptoms and is liable to turn violent and destructive. The mer, literally “one who is confused, deranged”, is less of a danger to others. The drúth appears to be a person with what is now called an intellectual disability.

NoteKelly’s words for the drúth, in 1988, were “mentally retarded”, and elsewhere he makes clear that he means a condition present from birth. The same Irish word was used of the professional entertainer who earned his living by imitating such a person.

The law, as Kelly gives itAs a rule it was the guardian who answered for what a person of unsound mind did. Kelly presumes the guardian was close family, a father or a brother for instance.

NoteKelly gives conn as the Irish for this guardian. His index gives the same word the meanings “head, sense, responsible person, guardian”.

The law, as Kelly gives itIn some circumstances the law went easier. Kelly’s first example is the one in our scene. When a drúth threw something and it hurt a person, nothing was owed for the hurt. Kelly takes the reason to be plain: it was for the passer-by to stay out of range.

NoteKelly’s footnote gives only a place in the printed corpus of the laws. That place falls inside the pages he lists for Bretha Étgid, the text on accidents, so we take the rule to come from there. In his chapter on offences he says that such an injury is regarded as accidental. He sets another rule beside it: a mer’s guardian did not answer for what the mer did in an ale-house, unless the mer was already known as an offender.

The law, as Kelly gives itWhoever put a drúth up to an offence had to pay the fine for it. Heptad 6 lists seven kinds of bloodshed that incur no fine or sick-maintenance. The first, in Kelly’s translation, is blood shed by “an insane person”, where the Irish word is drúth. He is exempt, and “it is the person who incites him who pays for it”.

NoteThe seventh, in Kelly’s translation, is “bloodshed by a boy in proper sport”, the subject of our case The Boys’ Games.

The law, as Kelly gives itThe law also looked to the care of people of unsound mind. A fragmentary text sets out what a kin owed to those of its own who were insane, old or physically disabled. In the text on distraint a defendant gets an extra day if he has a drúth or a mer to mind, and the text adds, in Kelly’s translation, that their rights “take precedence over other rights”. And a contract made with a person of unsound mind did not hold.

NoteThe fragmentary text is known by the late title Do Brethaib Gaire, “On Judgments of Maintenance”. Kelly says its second part deals with the care of the insane.

The commentary

Scholars sayBy its place in the printed corpus, the rule about the drúth’s missile belongs to Bretha Étgid, among other harm that nobody pays for. That is the text that says “the immunity of hammers is an anvil”, the rule in our case of The Smith’s Forge. A note of Kelly’s, with a reference to the same pages, says that a juggler was not liable if he hurt someone by accident during his act.

Scholars sayKelly describes a late Old Irish tract on the use of land that belonged to an insane person. Its title in the manuscript names all three kinds, the drúth, the mer and the dásachtach. It lists three lands that were shared out among the heirs while the owner still lived: the land of a drúth, of a man who had lost his senses, and of a man old enough to need keeping. Sureties guarded each heir’s share. An heir who did not look after the owner paid five séts and lost his share.

Scholars sayAccording to commentary there was a heavy fine for mocking a person’s disability. Kelly’s list is of bodily conditions: an epileptic, a leper, a lame man, a blind man and a deaf man. It does not name the drúth.

Where we are not sure

Scholars sayKelly gives the rule in a sentence, from one line of the law-text, and he notes no dispute about it. We have not read the line or its commentary. Breatnach’s Companion prints the line from another manuscript: it is three words long, and a commentary in Irish follows it that we cannot read. The reason Kelly gives, that the passer-by ought to keep away, is his own reading. He says this text describes each accident only very briefly.

Scholars sayKelly does not say whether the rule held if the stone was aimed at someone, or if the person struck could not have known to keep clear. He attaches no condition about a warning, as he does for a falling tree. Nor does he say whether it mattered that the thrower was known for it, as it did for the mer in the ale-house, or whether a guardian who let it go on could be called to account. In our scene the stones were thrown at the water, in plain view, and nobody had urged him on.

Scholars sayThe sense of some of these words is uncertain. Kelly finds the rarer terms especially hard to pin down, and the three used here are the ones whose meaning he says seems clear. No one English word fits drúth. Kelly writes “mentally retarded”, “idiot” and “fool”, and in his translation of Heptad 6 the same Irish word is “an insane person”. We would not use the first three of a person now.

Words used here

sét (a treasure, a valuable): The unit in which most honour-prices and fines are counted. The later lawyers generally reckoned two séts to the milch cow, though the old texts vary.
athgabál: Seizing a debtor’s goods, usually cattle, to enforce a debt without going to court: notice, a delay, then seizure, then the animals held in a pound where more is forfeited each day.
ráth, naidm, aitire: Someone who stood behind a bargain. The ráth was a paying surety, the naidm an enforcing surety who could distrain or seize the debtor, and the aitire a hostage-surety.
folog n-othrusa: Sick-maintenance: the duty of a person who injured another unlawfully to have him taken away and nursed until he recovered. Críth Gablach says the practice had by then given way to payments.
drúth: One of the three commonest words in the law-texts for a person of unsound mind. Kelly, writing in 1988, took it to mean a person who is “mentally retarded”, from birth. The same word was used of a professional entertainer who imitated such a person. A guardian normally answered for what a drúth did.

Honour-price, rank by rank · All the words

Where this comes from

Fergus Kelly, A Guide to Early Irish Law (Dublin Institute for Advanced Studies, 1988), pp. 91 to 94 on persons of unsound mind and pp. 94 to 95 on other disabilities; p. 92, note 198, for the missile (CIH 271.10, which lies within the pages Kelly gives for Bretha Étgid); p. 154 on offences by the insane; pp. 133 to 134 and 348 to 349 on Heptad 6, with his translation; pp. 64 to 65 on the juggler and on the word drúth; pp. 149 to 150 on Bretha Étgid; Appendix 1, nos. 27, 28 and 33; and his index of Irish terms under conn.
Liam Breatnach, A Companion to the Corpus Iuris Hibernici (Dublin Institute for Advanced Studies, 2005), pp. 180 and 422, for the line of the law-text as another manuscript has it.
We have read Kelly’s account. Of the Old Irish we have seen only the text of Heptad 6 that he prints, and the line on the missile in Breatnach’s Companion, and we cannot read either.

Last checked against these books: 2026-10-06. How we read our sources · Corrections