THE DEPTH OF A GRAVE
The graves in the Jewish cemeteries in San Francisco are dug down to the depth of six feet. At a recent funeral one of the mourners objected and said that the grave was deeper than it ought to be. Is there any basis to such an objection? Does the legal tradition have any rule about the depth of a grave? (Question by Louis J. Freehof, San Francisco.)
IT IS astonishing how little the legal literature has to say about the depth of a grave. For example, at the end of Yoreh Deah where all the laws of burial are given, there is no mention of this question. In modern times the scholar who wrote most on matters of burial, ceme-teries, etc., was the Hungarian Rabbi, Eliezer Deutsch of Bonyhad. His son-in-law, Joseph Schwartz, made an index of all matters relating to death, burial, cemetery, etc., in all the books of his father-in-law, and to that index he added a further index of funeral matters discussed in the magazine which he himself published (Vayelaket Yosef). In all this combined index devoted to matters of death, cemeteries, etc., I could not find a single mention of the dimensions of a grave. Even in the complete handbook written a few years ago by the late Rabbi Greenwald of Columbus (Kol Bo Al Avelut) which deals with almost everything relating to the subject, there is no mention at all of the dimensions of a grave.
However, if we go back to the Mishnaic sources and the Talmud, we do find some discussion of the matter. But the circumstances basic to the discussion in the Mishnah and the Talmud are so different from our modern circumstances that they can only give us approximate guidance.
The Mishnah (Baba Batra VI, 8) and the Talmud (Baba Batra 100a) discuss the sale of a cave, which in Palestine was the usual place of burial. They would dig niches for the bodies into the walls of the cave (just as one can see it in the Jewish catacombs in Rome). The question which concerned the Mishnah and the Talmud was how many graves could be dug into the walls of the cave (suppose that the seller claimed that the cave could hold a certain number of graves and the buyer found that it could only contain a fewer number of niches). The debate is a question, really, of the validity of the sale, but in discussing this financial dispute there is a clear statement of how large each burial niche shall be. The Mishnah says that each niche must be four cubits long (i.e., a little less than four yards into the wall) and seven handbreadths high. Strangely enough, this ancient dimension is repeated verbatim by Maimonides (Hilchot Mechirah, 21:16) and even in the Shulchan Aruch (Choshen Mishpat 217:6). Evidently burial in caves still had practical meaning to Caro (who generally records only the actual current Halachah).
These ancient Mishnaic laws of cave burial do not help us very much with the dimensions of our graves which are not dug horizontally into a cave wall, but vertically into the ground. If, for example, we tried to apply those caveniche dimensions to our earth burial, the depth of the grave would be only seven handbreadths, which would be about thirty-five inches, or less than a yard. Clearly no graves were that shallow. It is therefore all the more surprising that the various scholars mentioned above did not feel the necessity of discussing the problems of the relevance of these ancient dimensions to our modern earth burial.
The very first author whom I could find who discusses the dimensions of a modern grave was Rabbi Tekuchinski of Jerusalem, who wrote a two-volume work on death and burial (the book was completed by his son). The work is called Gesher Hachayim, the “Bridge of Life.” In Volume I, page 147, he has a short statement about the dimensions of the grave. There is no need to discuss the width and the length of the grave; that depends on the size of the coffin. What we and he are concerned with is the depth of the grave. He calls attention to the fact that the height (or depth) of the niche mentioned in the Mishnah and repeated by Maimonides and Joseph Caro, namely, seven handbreadths, does not apply to us because, after all, this niche was dug into the walls of a cave and there was a good deal of earth above the top of the niche. Therefore from the bottom of the grave to the surface of the earth was a considerable distance.
What, then, does Tekuchinski believe should be our practice as to the depth of the grave? He says that he was told of a reference in Ha’amek She’elah (evidently referring to the commentary of Naphtali Zvi Berlin to the Gaonic work She’eltot) to the effect that the grave should be ten handbreadths deep or more, because from that depth on, it becomes a separate reshut, or property, or enclosure. As for the custom in Israel today, the author says, “We dig it a metre and a quarter or more.” He says further that the head of the Sephar-dic rabbinate (who always bears the honorific title “Rishon Letsion”), said that, based upon the Cabbala, the grave should have the depth of the height of a man.
Though the Literature does not (except for Teku-chinski) speak of dimensions, there are a number of passages which indicate the need for deepening the grave. To the Jewish communities outside of Palestine who buried in graves dug down into the earth, instead of in niches dug in the walls of caves, it must have become evident at once that the dimension given by the Mishnah for the vertical height of the niche could not serve as an adequate dimension for the depth of the grave; seven handbreadths is hardly deep enough. It will be noted, therefore, that in the various places in the Talmudic literature where the question arises as to the proper depth of a grave, the wish is always ex-pressed for the grave to be deeper than hitherto, rather than shallower.
This desire to make the graves ever deeper sprang from various motivations which should be recorded. The first was the safety of the body of the deceased; The Jews in Babylon lived under a Zoroastrian government whose official religion did not believe in burial at all, and some of whose priests also seemed to have used the bodies of deceased Jews in the performance of necromancy. So we find the expression, “the Zoroastrian magician (Amgusha) who breaks into graves” (Bava Batra 58a). Thus we are told in Sanhedrin 98a-b, that Jose ben Kisma asked his disciples to be sure to make his grave quite deep because, as he said, “There isn’t a palm tree in Babylon that hasn’t a Persian horse tied to it.”
The second motive for deepening the grave was to guard against contamination from contact with the dead (tum’ah) . The Talmud in Chagigah 25b states that a man on his pilgrimage to Jerusalem must not be contaminated by contact with the dead. If, therefore, he has to cross a field about which there is some suspicion that there may be bones or parts of dead bodies there, he may blow away the dirt to see whether that is so (and if there are no bones, he may continue on his pilgrimage) . This suggestion that a man blow away the dirt so that he can continue on his pilgrimage is cited in a discussion in Moed Katan 5b. On this statement in Moed Katan, the Tosfot makes a comment (s.v., menapeach) to explain how merely blowing away the dirt could possibly reveal whether there was a bone there or not. The Tosfot says that “in Talmudic times they did not bury the dead as deeply as we do today.” This statement, of course, comes from France about 1100.
The third motive for deepening the grave had to do with the fact that people wanted to utter prayers or study or even utter a eulogy at the grave or in the vicinity of the grave. This is generally forbidden on the principle of “mocking the poor,” which is taken to mean that the deceased no longer have the privilege of studying Torah; and so we should not mock them by studying in their presence and thus remind them of the privilege which they have lost. Where this matter is taken up in the Gaonic work She’eltot, Naphtali Zvi Berlin comments on it. As mentioned above, Tekuchinski says that someone told him of this comment but he seems to have no exact reference to it. He is hardly to be blamed for not looking it up. The commentary is of vast proportions. However, it might as well be noted that the exact reference is in Berlin’s commentary, in the sidra Chaye Sarah, Question #14, paragraph 6, in which he says that we may now study and preach at the graveside because in Talmudic times when this was forbidden, they did not dig the graves deeply; but now our graves are deeper than ten handbreadths and there-fore constitute a separate or a private enclosure (reshut) belonging to the dead.
Thus we see there were three motives leading to a desire to make the graves ever deeper: the safety of the body, the protection from contamination, and the desire to be able to study and preach a eulogy at the graveside. There are no arguments, as far as I can trace, for wanting the graves to be shallower.
So it is to be noted from the above that there is virtually no binding rule in the legal literature as to the depth of a grave. When Tekuchinski gives the depth used in Israel and also cites Ha’amek Sh’alah, in each case the dimension which he gives (a metre and a quarter, or the height of a man) he adds the words “and more.” In other words, these two depths are the minimal depths. Clearly, then, as far as there is any law on the matter, there is no restriction at all in making the graves six feet deep or even more if there is a good reason for it.