Parsha Mitzvot: Vayechi: Chatam Sofer: Delayed Burial
“And Egypt bewailed him (Jacob) for seventy days. When his bewailing period passed, Joseph spoke to Pharaoh’s household, saying, “…now I will go up if you please, and bury my father; then I will return.” (Genesis 50:3-5)
In April 1772, Duke Fredrick of Mecklenburg informed the Jews of the duchy that they would no longer be permitted to bury their dead on the same day that death took place, since such hasty burial might result in some being buried alive. The Jews of Schwerin, in Mecklenburg, considering the decree unjust, since it would compel them to violate Jewish religious law, wrote both to Rabbi Yaakov Emden in Altona and to Moses Mendelssohn in Berlin, asking for help. The problem aroused a considerable Jewish legal correspondence, which is published in Bikkurei ha-Ittim (1822-1823, Pages 209-23b)
Mendelssohn advised them to conform to the decree. He said that even in ancient times our ancestors were concerned with this danger of burying alive. Therefore they placed the deceased in a cave-crypt and then visited the cave for three days. Nowadays, said Mendelssohn, when internment is immediate and direct, it is impossible to observe whether the buried is still alive. Therefore we should certainly wait three days before burial. The decree of the Duke of Mecklenburg is not against Jewish law, but is actually in accordance with the more ancient custom.
Rav Yaakov Emden, in two friendly letters to Mendelssohn, refutes his arguments. He mentions that all Jews, Askenazim, Sephardim, and Orientals, bury their dead on the day of death. This widespread custom cannot lightly be set aside. Clearly, the chances of live burial must be remote if the rabbis took no cognizance of it.
A generation later a similar order was decreed in the Austro-Hunfgarian empire. Thus the question of the permissibility of delayed burial came before the greatest Hungarian authority, the Chatam Sofer (1763-1839). His Responsum is based to some extent upon the letters of Rav Emden to Moses Mendelssohn.
The Responsum (Y”D #338 was probably written to Rav Tzvi Hirsch Chayes of Zolkiew.
Your valued letter reached me and your precious spirit is in your question concerning the city A in which the doctor is a kohl and the laws of the country are that the dead may not be buried unless the doctor has examined and testified that there is no hope after they have fallen (i.e., that they are surely dead). the question is whether (the doctor who is) a kohl may enter even to to touch and examine (the body). Your eminence wishes to permit this, and builds his foundation upon two things: 1) that the generation which preceded us permitted the keeping of bodies overnight, although this is actually a violation of both a positive and a negative commandment, and yet they permitted it because of the possibility of danger to life, therefore we should permit it now; and 2) your permission depends on the response Bet Yaacob (by Jacon ben Samuel of Zosmer), who argues the desirability of permitting a kohl to enter a room where an invalid is dying.
When i read these words emanating from the mouth of a man of your standing, I was shaken and terrified, asking myself, who and what sort of a person was this in the generation which preceded us who had permitted the keeping of the dead overnight and, indeed, permitted it according to the opinions of the sages of Israel? I have never heard nor seen such an opinion. Behold, your eminence depends (for his argument) on the great tree (phrase from the Talmud, Pes. 112a, where it means to rely on a great authority), namely, the response of Jacob Emden, vol. II. But your imagination and memory misled you…
We see without doubt that, when the Torah speaks of the criminal who is put to death, and says first, negatively, thou shalt not allow his body to lodge overnight, and then says positively, thou shalt surely bury him, that whoever allows the body to stay overnight thereby violates both the positive and the negative commandment. Thus, too, we are given the measure of what constitutes death. Perhaps (behind the command of the Torah for immediate burial) there was a tradition from the ancient students of nature, even though their old knowledge has been forgotten by the medical science of our day. Our rabbis relied on these ancient students of nature in many cases, as is explained in the Talmud Shabbat 85a ( where they relied on old wise people as to the layout of fields to avoid mixed species), and they based their reliance (on these old wise folk) upon the text, Remove not the border which the ancients have set down (Deut. 19.14). Or if , in the case of death, they did not have a tradition from these old students of nature, at least they must have received the direct test from Moses, or they relied upon the implication of the text, all that hath the breath of life in its nostrils (Gen. 7.22). Wether he is alive or dead, depends on wether there is breath in his nostrils, as is explained in Talmud Yoma 85a.