By: Kaufmann Kohler
The act of exhumation, or taking out of the earth or the grave. The removal of dead bodies from one place of burial to another has been a subject of controversy among Jewish authorities, and in recent times has become a cause of litigation in the secular courts. In cases where the relatives desired to transfer their dead to a place designed to serve as the family plot, representative leaders of Orthodox Judaism have forbidden the removal, while other rabbis have claimed that, according to the Jewish code of law, such procedure was not only permissible, but in a certain sense actually desirable. See Burial.Guiding Rule.
The question hinges upon the interpretation of the halakic rule which says: "It is unlawful to remove the body or the remnants of bones from one place to another, whether from an honorable place to an equally honorable one, or from a lowly place to one equally lowly, or even from a lowly place to an honorable one, not to speak of the reverse. It is, however, permissible to remove the same if the dead is to be reinterred among his own; for it is pleasant for a man to repose alongside of his fathers" (Shulḥan 'Aruk, Yoreh De'ah, 362, 1, based Upon Yer. M. Ḳ. ii. 81b; Massek. Semaḥot xiii.; Kol Bo cxiv.). Those rabbis who forbid the transfer of a body to unoccupied ground intended to serve as the family plot base their prohibition on the expression "eẓel abotaw" (alongside of his fathers); insisting on the occupancy of the place by the remains of relatives who had died previously, and excluding, therefore, a case where a family plot is to be initiated by the burial of the body to be disinterred. They claim that the desire for repose among one's own is supposed to be cherished only with reference to past generations and not with reference to future ones.
Those who favor removal in such a case take the words "it is pleasant for a man to repose alongside of his fathers" in a larger sense, conveying the idea that to be buried in a family plot is presumably desirable to any man, and it matters not whether the family plot has been already brought into use or is to be consecrated for future time. In corroboration of this view they refer to the fact that the older Baraita in Massek. Semaḥot l.c., as well as the Kol Bo, makes no mention of "alongside of his fathers"; the former simply stating as the reason that "it is conferring an honor upon the dead" ("she-zeh hu kebodo").
R. Moses Sofer, in a responsum ("Ḥatam Sofer," vi. 37), permits disinterment, and calls it a meritorious act in case it was the wish of the dead to be buried in the burial-place of his fathers; he refers to Mak. 11a, a passage which, however, implies the occupancy of the ground by the remains of relatives who had died previously.Cohn vs. Shearith Israel.
In the case of Cohn versus the Shearith Israel congregation of New York, which came before the New York courts and was discussed in "The American Hebrew" and "Jewish Exponent" for March and April, 1902, Dr. H. P. Mendes, rabbi of the Shearith Israel congregation, opposed the grant by the court of a permit for disinterment, and sustained his opposition by responsa from Dr. H. Adler, chief rabbi of the United Hebrew Congregations of the British empire; Dr. Gaster, chief rabbi of the Spanish and Portuguese Jews of England; Dr. Klein, rabbi of the First Hungarian Congregation of New York; Dr. B. Drachman, rabbi of Congregation Zichom Ephraim of New York; and Rev. M. De Sola, minister of the Spanish and Portuguese congregations, Montreal, Canada—all ofwhom declared that remains interred in a cemetery may not be removed for the purpose of reinterment in another cemetery in a plot which has been secured since the death of the deceased in question.
On the other hand, Dr. K. Kohler, rabbi of Temple Beth-El, New York, when consulted as to the view of the authorities of traditional (Orthodox) Judaism, declared that, inasmuch as the law excepts from the prohibition of disinterment every case in which the removal is a benefit to the dead and would be presumably desired by him, the transfer of the body to a family plot to be consecrated is just as lawful as its transfer to a family plot already occupied; the spirit and not the literal meaning of the words "alongside of his fathers" being the essential point. The courts, however, sustained the Congregation Shearith Israel, and the application for a permit for disinterment, contrary to the cemetery regulations of the congregation, was refused.
- The American Hebrew, March 14, 21, 28, 1902;
- K. Kohler, Orthodoxy and Hyperorthodoxy, in The Jewish Exponent, April 18, 1902.