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Responsa in War Time
Selected Excerpts from
RESPONSA IN WAR TIME
COMMISSION ON JEWISH CHAPLAINCY*
NATIONAL JEWISH WELFARE BOARD
15 East 26th Street; New York, N.Y. 10010
*Formerly Division of Religious Activities (CANRA)
Posted with the permission of the JWB Jewish Chaplains Council*, an agency of the Jewish Community Centers Association/NA
(*formerly Commission on Jewish Chaplaincy, National Jewish Welfare Board) - Rabbi David Lapp - 12-4-2002
NATIONAL JEWISH WELFARE BOARD
NATIONAL ASSOCIATION OF YMHA's, YWHA's, and JEWISH COMMUNITY CENTERS
MEMBER OF THE UNITED SERVICE ORGANIZATIONS, INC. (U. S. O.)
FRANK L. WEIL, President; Mrs. FELIX M. WARBURG, Honorary Vice-President;
Mrs. ALFRED R. BACHRACH, LLOYD W. DINKELSPIEL, IRVING EDISON, Mrs. SAMUEL R. GLOGOWER, Mrs. WALTER E. HELLER, CARL LOEB, Jr., DONALD OBERDORFER, RABBI DAVID de SOLA POOL, Vice-Presidents
JOSEPH H. COHEN, Treasurer; Robert K. RAISLER, Assistant Treasurer,
JOSEPH ROSENZWEIG, Secretary
RALPH K. GUINZBURG. Assistant Secretary; S. D. GERSHOVITZ, Executive Director
DIVISION OF RELIGIOUS ACTIVITIES
Rabbi Louis M. Levitsky, Vice-Chairman
Rabbi David de Sola Pool
Rabbi Philip S. Bernstein
Rabbi Aaron Blumenthal
Rabbi Max 0. Davidson
Rabbi William Drazin
Rabbi Abraham J. Feldman
Rabbi Israel M. Goldman
Rabbi Herbert S. Goldstein
Rabbi David I. Golovensky
Rabbi Robert Gordis
Rabbi Abram M. Granison
Rabbi Leo Jung
Rabbi Simon G. Kramer
Rabbi Leon S. Lang
Rabbi Edgar F, Magnin
Rabbi Uri Miller
Rabbi Emanuel Rackman
Rabbi Jacob P. Rudin
Rabbi Bernard Segal
Dr. Morton A. Seidenfeld
Rabbi Elkan C. Voorsanger
Rabbi Aryeh Lev Director
Several times during the war years the Division of Religious Activities (CANRA) published various brochures dealing with special chaplaincy activities, "beyond the line of duty" brochures, which it was thought would be of interest to the Jewish community of America. This present pamphlet reflects the remarkable agreement which was effected by the Orthodox, Conservative and Reform rabbis on CANRA in reference to the practical problems of Jewish law confronting the Jewish chaplain and his GI congregation.
Although in many aspects of Jewish life in America the achievement of unity of action has been difficult, here harmony was achieved on religious practices, the most controversial of all subjects in Jewish life. The dictum, "Elu v'elu divrei Elochim chayim", was used not only to acknowledge respect for the view of others but also to go on from there to a common decision which would be helpful to the men under arms in each particular circumstance of war. It is to the glory of the American rabbinate, that, without the power and approval of an established ecclesiastical hierarchy, it was able to create such a set of responsa. The final decision was always based on "halacha". but the interpretation was broad enough to permit the word of God to be truly "chayim", "living", and livable even under war conditions.
Our appreciation goes to Dr. Freehof, Dr. Jung and Dr. Steinberg, members of the Responsa Committee, for this task so well done. Our gratitude is expressed especially to Dr. Freehof who as chairman demonstrated qualities of erudition, understanding, and leadership which won for him the respect and the high esteem of both the members of CANRA and the chaplaincy. It is indeed a joy to have a hand in the preparation and distribution of this pamphlet and to make it available to the individuals and organizations designated by the Division of Religious Activities to receive it.
May K'riah be performed, since the uniform may not be mutilated?
An inquiry came from a chaplain with regard to a soldier who received a telegram from home announcing the death of his father. The soldier wanted to know whether he could perform the K'riah since the Army uniform may not be mutilated.
When K'riah is to be performed the underclothing over the heart should be cut.
THE BURIAL OF THE BLOOD REMOVED FROM THE BODY DURING EMBALMING
Should we ask the Graves Registration Service to preserve the blood taken from the bodies of embalmed Jewish soldiers and bury the blood with the body? (It is standard procedure of the American Graves Registration Service of the United Kingdom to embalm the bodies of deceased soldiers.)
The question [of] whether the blood which comes from the body a considerable time after death is to be buried with the body or is simply to be washed away in the tahara is an undecided question in Jewish law. Maharsham (quoted by Greenwald in Ach L'tsarah, page 33) says that the blood should be buried. However, Pitche Teshuvah to Yore Deah (364,#5, section 6) says that postmortem blood (as, for example, blood which comes from the body of a drowned man) should be washed away and need not be buried, Pitche Teshuvah's opinion is based upon Chinuch beth Jehuda (#95), Since the question of the burial of the postmortem blood seems to be undecided in Jewish law, the CANRA, confronted with an emergency wartime situation, will not insist that the Graves Registration Services in the United Kingdom follow the procedure of the burial of the blood. This is; however, only a wartime emergency decision, and does not presume to be a general decision of the question which is still unsettled.
DRESS OF MILITARY DEAD
The military custom is to have the man's service cap in his hand rather than upon his head. Should the chaplain request that the cap be placed upon the head of the soldier who is to be buried?
If the deceased was known to the chaplain as an observing Orthodox Jew or if the chaplain knows that the family of the deceased would prefer it so, he may ask that the cap be placed upon the head of the deceased.
USE OF THE TALLITH IN MILITARY BURIAL
How can a chaplain obtain talleithim for use in funeral services overseas?
Chaplain Aryeh Lev at headquarters submits the following reply:
"In this country, bodies of Jewish soldiers may be prepared according to the wishes of the parents. The body is brought to the denominational undertaker and properly placed in the coffin ready for burial either at the home cemetery or a national cemetery.
"Overseas and especially in time of war such elaborate preparations cannot be made. In war conditions the body is buried as soon as possible so as to avoid decay or despoiling by the enemy. Burial parties work even under fire and they could not be expected to carry about with them talleithim to place on the Jewish dead."
The CANRA agrees with Chaplain Lev. Machneh Yisrael, Chapter 40, says, "The slain is buried without Taharah and in his garments and shoes just as he is found. See also Shulchan Aruch, Orach Chayyum 364, 4. This of course applies to the boys fallen in battle overseas. The bodies of soldiers who die in this country may be claimed by their parents and the funeral provided for by them.
USE OF THE TALLITH IN MILITARY BURIAL
Would it be fitting to have the tallith placed inside the blouse since it is not practical to dress the bodies of Jewish soldiers for burial in traditional burial clothes - shrouds, tallith, etc.
We have already discussed the question of burial in a tallith with regard to soldiers fallen on the field of battle. In their case we have decided that they should be buried as the Jewish law permits in the case of the slain in the garments in which they were found, i.e. their uniforms.
(a)It should be said at the outset that soldiers should be buried as they would have been buried if they had died as civilians. Sons of Reform Jewish families who would be buried in civilian clothes are buried with their military clothes without change. As for Orthodox boys or boys of from homes of strict observance who would be buried in a tallith, the Orthodox practice should be followed.
If the body is turned over to the family, they will of course see to it that traditional practices are followed.
(b) May the tallith of an Orthodox soldier be placed beneath his blouse in burial?
Rabbi Greenwald in "Ach L'tsarah", page 65, gives full discussion including the latest authorities on the question of burial in a tallith. In paragraph #13 he quotes late authorities to this effect: "he who is accustomed to pray wrapped up in his tallith shall be buried in a tallith; while he who is accustomed to pray in his tallith katan shall be buried merely with his tallith katan."
It is the sense of CANRA that a tallith is preferred. For burial in this country the Jewish Welfare Board will supply a number of talleithim since the tallith is to be preferred for the use of deceased soldiers of Orthodox families.
POSITION OF INDIVIDUAL OFFICIATING AT GRAVE
A chaplain says that he has always been accustomed to stand at the foot of the grave during the ceremony. In the army reservations the graves do not face east and army regulations seem to require that the chaplain stand at the head of the grave.
Whether graves should be east and west and whether the head of the body should be towards the east or west or in any specified direction is a matter not of law but of minhag, Moses Sofer denies that the minhag has any basis in law, and he calls attention to the graves discussed in Baba Bathra. VI, 8, where the niches are cut in all directions.
There is therefore no objection in Jewish law to the chaplain conforming to army practice and standing at the head of the grave during the funeral service.
POSITION OF COFFIN DURING SERVICE
How can we reconcile with Jewish practices the Army practice of allowing the coffin to remain above the ground during the funeral service and giving of military honors?
The problem involved in this matter is what is the proper time for reciting of the Tsidduk Ha-Din. The discussion is found in Beth Joseph to Tur Yore Deah 339 and in the Tur itself 376. It is evident from the Tur that the older custom was to say the Tsidduk Ha-Din at the home the moment the relative died. Another (a later custom) was to say it at the cemetery.
The present Ashkenazic custom is to say the Tsidduk Ha-Din at the cemetery before the body is buried and the Kaddish after the burial.
Inasmuch as Jewish custom permits so much of the service before the body is buried, i.e., the psalms on the way to the grave, etc. there can be no objection to following the custom of permitting the services and the rendering of the military honors before the coffin is lowered.
DECORATION OF JEWISH MILITARY GRAVES
In the case of a mass military observance in a military ceremony, as for example on Memorial Day, when the graves are decorated with flowers should the chaplain request that an exception be made with regard to the graves of Jewish soldiers, so that no flowers be put upon them?
The objection to planting flowers and shrubs on graves is based upon the principle that the living may not derive benefit from the earth of the grave (asur b'hanaah). However, this applies to permanent planting. The objection to extravagant display does not apply in the case where once or twice a year a few flowers are placed on all the graves in a military ceremony.
The chaplain need not ask for any exception to be made in this case with regard to the graves of Jewish soldiers, since this decoration is for the honor of the dead (mip'ne kevod ha-meth).
May a soldier or sailor who is on lonely outpost duty for a considerable period of time (as for example, men on coast guard duty) in the event of Yahrzeit say Kaddish alone, since he cannot possibly assemble a minyan?
Just as in the case of the tefillah it is preferable to say it with the congregation and yet it is permitted to be said silently alone, so the Kaddish which is primarily part of the congregational response may also be recited silently alone.
Furthermore, the CANRA will arrange for Kaddish to be recited in a congregation in honor or the departed relative of any soldier or sailor who writes in to CANRA or makes such arrangement with the chaplain. The soldier or sailor should report the date of the Yahrzeit and the name of the relative.
COMMUNAL RECITATION OF KADDISH
What is the attitude of CANRA on the communal recitation of Kaddish? The men attending services at one camp seem to object to the concerted communal recitation of Kaddish.
If by communal reciting of the Kaddish is meant that the cantor or chaplain reads the Kaddish alone for the entire congregation, as is the custom in most Reform congregations, clearly this method of reading the Kaddish will not do when there are mourners present who want to say the Orphan's Kaddish individually.
An opportunity must be provided for mourners who so desire it to recite the Kaddish.
If, however, by communal reciting of the Kaddish is meant that the mourners are indeed allowed to say Kaddish but they are required to say it as a group in unison and the congregation responds 'Y'hay sh'meih rabba, etc,", this subject has received considerable discussion in rabbinic literature, chiefly in connection with the disputes between orphans or Yahrzeits as to who should have the privilege of saying Kaddish. Discussing the mourner's Kaddish Jacob Emden in his Siddur says:
"I will not go into the matter as to who should have the privilege of saying Kaddish, etc., for that is a matter of minhag; but how fine and praiseworthy is the custom of the Sephardim in this regard, namely, that if there are many who have to say Kaddish, they say it together and dispute is thus obviated.
"Moses Sofer discusses the same subject in his Responsa (Chatham Sofer, Yore Deah 345). He quotes with approval the Sephardic custom mentioned by Jacob Emden and says that in fact in his school they do have the same thing with regard to Kaddish d'Rabbanan, namely, that the orphans say it all together, and he adds and what harm is there in it (mah b'chach).
There is also a still more recent responsum on this subject by Markhus Horovitz, the Orthodox rabbi of Frankfurt in the first half of the 19th century (Matteh Levi II, #3). He said that he accepted this custom of saying Kaddish in unison (although he did not prefer it) because it is an ancient custom in Frankfurt according to the old Frankfurt minhag.
We may conclude that while opportunities for a minyan for any mourner shall be provided whenever possible on his Yahrzeit nevertheless at the regular public service in the army and navy the mourners be asked to recite the Kaddish in unison in accordance with the customs as recorded above.
Should CANRA direct chaplains to obtain furloughs for Jewish boys to go home for their Yahrzeit?
The committee agrees that a chaplain is not justified in asking for a furlough to make possible the return of the boys to their homes to observe their Yahrzeit. However, the chaplain should make every effort to arrange for a minyan in camp or in a nearby Jewish community.
YAHRZEIT - WHICH DAY IS TO BE OBSERVED
WHEN DATE OF DEATH IS UNKNOWN
A chaplain asks what date is to be observed as Yahrzeit when a man is declared officially dead but no trace of remains is found and no accurate date of when he was missing is available. He was lost during a battle of several days duration.
The main question which we are asked is which day shall be observed as Yahrzeit when the date of the death is not-known. This question is complicated by the fact that although the man is officially declared dead by the report of the government, no trace of the remains can be found, and the observance of mourning is involved with the question of the right of the wife to remarry. Thus, Ture Zahav to Shulchan Aruch in Yore Deah 375 #7, declares that there should be no forms of mourning for a man who is drowned in the sea inasmuch as the ceremonies of mourning would be taken by some to indicate that the wife is permitted to remarry. See also Joseph Karo to the Tur, ibid. In fact, even if the man who was drowned in the sea is an unmarried man and the question of the remarriage of a wife is therefore not involved, even so, no forms of mourning should be observed for him. See Greenwald, "Ach L'tsarah," page 235, note 15, However, in all these matters of the reliability of the of official report of death, the CANRA has decided in a previous responsum (based chiefly upon a responsum of Moses Sofer) that the government report should be accepted, and as for the final determination of death by a Beth Din, the CANRA decided to leave that to each individual family and their rabbi. While this matter of remarriage is not directly concerned in the main question which we are asked, namely, concerning Yahrzeit, nevertheless, it is involved in it and it is important to mention it in this responsum.
Now as to the main question, namely, when should Yahrzeit be observed since the date of death is not specifically known: in the case of tidings of death (either Shemuah Kerovah or Shemuah Rechokah), the date when the tidings are received is the important date.
Thus, when the report of death comes, the mourning begins from the time the report came. In the case of a close report (Shemuah Kerovah) the mourner counts the thirty days from the day that he gets the report, since the principle is that the day of the tidings, Shemuah Kerovah, is legally equivalent to the date of burial (Shulchan Aruch, Yore Deah, 402), So, in the case of a distant report, Shemuah Rechoka, which is this case referred to us, the one hour of mourning takes place on the day that the report came and the thirty days of mourning for a father or mother begin with the day when the tidings came.
Since, therefore, it is clear that the day of receiving the report has the status of the day of the actual burial, that is the only date he has for the Yahrzeit in succeeding years.
BURIAL ON SABBATH
Is burial on the Sabbath ever permissible? Is It permissible during the War Emergency period?
A plane crash took place killing several military men of whom one was a Jew, The post authorities made all arrangements for the funeral which occur ed on the Sabbath, The chaplain was asked to participate and agreed to participate insofar as the military honors were concerned. But he explained to the authorities that Jews do not bury on the Sabbath,... .But the bodies were so mangled and in such condition that it would have been better to bury them at once. How can burial on Sabbath be permitted on the battlefield?
The Jerushalmi to Moed Katan III, 5 discusses the question of the termination of the period of Shiva and speaks of a case in which the eighth day comes on the Sabbath (which means that the burial itself took place on the past Sabbath) But how could that have occurred? One answer given by the Jerushalmi is that the grave was closed on the Sabbath by gentiles.
Nevertheless in spite of this implication that burials may have taken place on the Sabbath with gentiles performing the necessary work, the law is clear that burial on the Sabbath is forbidden. See particularly Tosafoth to b. Baba Kamma., 81a (under the phrase :0mer L'Nochri') as follows: "Logically it ought to be permitted to bury the dead on the Sabbath., but since it is ugly and shameful to be buried on the Sabbath, in violation of the Sabbath Law8 it is forbidden also for burial to be performed by gentiles."
Even a Meth Mitzvah may not be buried on the Sabbath. (See b, Sanhedrin 35a and b where a theoretical supposition by Resh Lakish that such a burial be permitted, is refuted by the Talmud.)
This general prohibition applies to normal circumstances. Yet even in civilian life in case of an epidemic, if the government orders the immediate burial of someone who dies on Friday evening, then the burial must take place. (See Greenwald's "Ach L'tsarah" p. 971). In wartime, a military command sets aside the laws of the Sabbath. (See Chofetz Chayyim, Machneh Yisrael, Chapter 28: "With regard to a man in military life, the duties imposed upon him by the command of the government, Tsivvui. Hammemshalah, are permitted to be done and he is not thereby a profaner of the Sabbath,," On the battlefield where a burial detail is specifically ordered to bury the dead, the Jewish chaplain and whatever Jewish soldiers receive the order must bury the dead even on the Sabbath.
Back of the battle areas or in the United States when specific military order is given for immediate burial owing to an epidemic or a catastrophe, such as an airplane accident when the condition of the bodies requires immediate burial, then this specific order should be accepted without question and the bodies should be buried even on the Sabbath.
Aside from these exceptional circumstances, burial should not take place on the Sabbath. But in exceptional cases as referred to above; the chaplain should consult the officer in charge as to whether the burial may not be postponed to another day when burial is permitted according to Jewish practice.
Dr. Jung adds to the above that while as mentioned the burial should not be opposed by the chaplain, the usual service should be modified.
We have been informed semi-officially as follows: It is becoming increasingly apparent that at the termination of the war, the War Department, upon polling and receiving the consent of 70% of the nearest of kin, will bring back all the American dead buried overseas.
For the percentage who do not give consent there is no choice - the bodies will be brought back and no American cemeteries will be kept overseas. May this disinterment be done under Jewish law?
Considering the special circumstances involved there can be no objection from the point of view of Jewish law to this proposed removal of bodies to America. In the first place it was clearly the intention of the government to move the bodies back to America, therefore this burial overseas was made with the intention of re-interment; second, the government will not maintain overseas cemeteries and [there] would be none to protect and guard any graves that might by chance be left; and third, because the re-burial will be al kever avoth (Yore Deah 363 #1).
(Since the above was written the Government has changed its policy somewhat. There will be a few central cemeteries maintained overseas for those whose relatives do not desire that they be brought back to the United States. The bodies of the soldiers will be disinterred from the various scattered places where they are now buried and will be removed to three central cemeteries. As to the disinterment, there is no doubt that the rule mentioned above applies namely, that it is permitted to disinter the bodies from the scattered cemeteries and place them in the cemeteries where the graves will be protected and guarded. See also "Aruch Ha Shulchan" to Yore Deah 363, I).
However, the further question is asked with regard to whether there should be any ritual or order of services for exhumation.- With regard to ritual or services in connection with exhumation, there is some reference in the older sources. The Palestinian Talmud to Moed Katan 1,5, says that there should be no bircath avelim and no tanhume avelim but only words of praise for the departed, Hai Gaon (quoted by Isaac ibn Ghayyat in Shaare Simchah, Hilchoth Evel. p 73) tells of the custom of burying in Bagdad and then removing the bodies for reburial in the desert. He says that it is not, the custom for people to gather for the occasion or to say Tsidduk ha Din but he continues, follow the custom of your fathers in this matter, yet do not pronounce blessings for they may be blessings pronounced in vain, i.e.-, since no blessing was prescribed for disinterment.
Judging by the statement of Hai Gaon who had considerable experience with the custom of disinterment, it is preferable that there should be no services at the disinterment. In line with this tradition, we might well decide that there is no requirement to have services at the disinterment, nor is it necessary for the people at home to have any or to follow any of the ritual of mourning unless they know the exact day when the disinterment takes place. See Yerushalmi ad loc. However, following the statement of Hai Gaon, who speaks of the use of Biblical passages and collections of Biblical verses (and also the statement of the Palestinian Talmud that omrim d'varim, we speak words of praise), we might write a service composed of appropriate Biblical passages and provide in the service for a memorial address at the time of the reburial.*
With regard to the further question of arranging for a Jew to accompany the body when it is brought back overseas and the caution that this may not always be possible, the CANRA would request the War Department that inasmuch as many bodies will be brought over in the same ship, a soldier of Jewish faith be included in every detachment which accompanies a shipment of bodies or at least whenever it is known that bodies of Jewish personnel are included.
The CANRA also request that a Jewish chaplain be assigned to the Quartermaster's department who should be available for consultation and inspection of the entire work involved.
*- The family should observe aveluth after the reburial until the evening of that day. (Moses Sofer, Yore Deah 353 and Greenwald Ach L'tsarah p. 234.)
MAY A BODY BEING REMOVED FROM A TEMPORARY TO A PERMANENT COFFIN BE THEN DRAPED WITH A TALLITH?
We received the following information from the War Department. "Some time after hostilities are over, the bodies will be disinterred, the temporary coffins will be opened, the bodies will be re-examined and checked for identification and finally will be placed in a metal casket which will be sealed. During this operation it will be possible to drape a tallith over the remains of those who were buried without one; I want you to clearly understand that no additional step in the handling of the deceased will be involved in the placing of the tallith in the casket. The operational procedure is standard and is followed to insure proper identification, proper sanitation and proper handling of the deceased so as to minimize the agony of the nearest of kin,"
The suggestion to place a tallith on the body when it is removed from the first casket to the second has no specific parallel in Jewish law, but there is sufficient material closely related to it to give us the basis for coming to a conclusion. The Talmud in b. Baba Bathra 154 a and b discusses whether it is permitted to open a coffin to examine the body, and the conclusion is that it is forbidden "lenavvelo", to treat it disrespectfully by handling.
A question closer to our discussion is the following, is it permitted to disinter a body in order to clothe it in the manner required by Jewish law and custom, i.e., shrouds, tallith, etc.? The question is discussed by many of the rabbis.
(The first to discuss it seems to be Gershon Ashkenazi of Metz (17th century), author of Avodath Hagershuni, He discusses specifically the following question; two bodies, one of a man under twenty and one of a man older than twenty, were buried, but those in charge of the funeral neglected, in the case of both bodies, to put on one of the garments of the tachrichim. May the bodies be disinterred in order to put on the missing garment? Gershon Ashkenazi decides that the body of the man above twenty may not be disinterred for this purpose (mippene cherdath hadin) whereas the body of the man under twenty (who is considered not subject to punishment) may be disinterred. This opinion is quoted by David Oppenheim of Prague in his long responsum on disinterment quoted at the end of "Chavath Yair" (Yair Ghaim Bachrach), page 136b of the Lemberg 1894 edition. David Oppenheim, referring back to the Talmud in Baba Bathra which declares that bodies cannot be disinterred for examination mippene nivvul hameth, would forbid the disinterment of either body. The same opinion is expressed by Ezekiel Landau in "Noda Bi' Yehuda" II #164. The subject is likewise discussed by Chacham Zvi #47 and Keneseth Ezekiel #144.
In modern times the subject was taken up by Rabbi Joseph Elijah Fried in "Ohel Yosef" #18. He was asked whether a man who was buried in his street clothes may be disinterred so as to be buried in the traditional burial clothes. He quotes most of the above authorities and therefore decides in the negative, (See also Ach L'tzarah, page 179 #14.)
The situation as described by the War Department is not quite the same as the various situations which came up in the response literature, where the question is asked whether we should disinter in order to put on the proper burial clothes, and the answer is almost unanimously in the negative. Here, however, the bodies of the soldiers will be disinterred anyhow and will be removed from one coffin to another, and we are told that it will not require much extra handling of the body to put on the tallith.
It would seem, therefore, natural to decide that the tallith might as well be put upon the body.
However, the Committee hesitates to make a decision which is contrary to the almost unanimous decision of past authorities even though the cases with which they dealt were not identical with our present case. Even though we are told that the putting on of the tallith will not in-involve any extra handling of the body, there will manifestly be some extra handling for that purpose and this certainly is against the spirit of all who have dealt with the analogous questions. Therefore, the Committee certainly cannot inform the War Department that Jewish law requires the tallith in these circumstances.
Besides, the CANRA has decided that soldiers should be buried as they would have been buried if they had died as civilians. Some of Reform Jewish families who would be buried in civilian clothes are to be buried with their military clothes without change. As for Orthodox boys, or boys from homes of strict observance who would be buried in a tallith; the Orthodox practice should be followed.
According to the method described in the War Department proposal no distinction should be made since the original chaplains, who know the boys, would certainly not be present. Be sides it is open to question whether it is permissible to clothe a man in a tallith who never used a tallith in his lifetime (cf, Ach L tsarah page 179 #18).
Rabbi Fried (Ohel Yosef #18) makes a suggestion which might be of help to us in the case quoted above in which the man was buried in street clothes. He suggests, in the case which we discuss, that the earth be removed and the tallith placed upon the coffin. By analogy, we might suggest that when it comes to the reinterment, those families who desire it may request that the tallith be put directly upon the coffin under the flag.
If the tallith is placed in the coffin when the body is not disturbed unduly by any attempt to clothe it in the tallith, most of the difficulties mentioned above will be overcome. We, therefore, agree that the folded tallith be placed in the coffin.
JEWISH FUNERAL ESCORTS
The Director of CANRA has asked the following question of the Responsa Committee.
A memorandum from the quartermaster general's office (Memorial Division) describes the procedure which will be followed in bringing bodies from overseas to the next of kin. After the bodies will be brought to the various distribution centers in this country they will be sent to the nearest of kin in accordance with directions given by the nearest of kin. It is further planned to furnish an individual escort for the body when sending it from the distribution center to the nearest of kin. This individual escort will be a member of the same arm of service as the deceased; thus an Army Air Force man for air forces, a Marine f or Marines, etc. Owing to the multiplicity of sects in our country and the difficulty of obtaining appropriately trained escorts for all denominations from the limited resources of a peacetime Army and Navy, it has been decided not to regard the religion of the deceased in providing the escort.
In reference to this memorandum the Director asks: "Should we insist with the War Department that a Jew must accompany the body of a Jewish soldier from the distribution center to the nearest of kin?
Before going into the question of the attitude of Jewish law, it is of interest to know what the desires of other denominations are likely to be in this matter. Upon inquiry from a high source the chairman ascertained that Catholics will almost certainly not ask that Catholic personnel be detailed to escort the bodies of Catholic soldiers. We may well assume that Protestants also will refrain from making such a request, If, then, we made the request, we would be the only major denomination declaring that members of other religious groups are un-acceptable to us as escorts, In that case the general principle of Mippene Darchei Shalom should be considered before we decide to insist.
If there is a clear requirement in Jewish law that only Jews accompany the body of a Jew., then of course, we must override the principle of Darchei Shalom in behalf of the requirement of religious conscience. Is there such a requirement in Jewish law?
Whenever the escorting of bodies is mentioned in Talmudic literature, the reference is generally to a son escorting the bones of his father (m. Moed Katan 1,5 and Talmud ad loc.; Semachoth Chapter XIV). It is, of course, the natural situation that it should be the son who is engaged in this task, and no general conclusion can be drawn from that as to the participation of non-relatives or even non-Jews. As for the relationship of non-Jews to the burial of a Jew, the law is clear, that just as a Jew may actively participate in the burying of a non-Jew, so may a non-Jew participate in the burying of a Jew. Thus: "It is permitted to sustain their poor, to visit their sick, to bury their dead and to pronounce eulogies and console them M'shum Darchei.Shalorn". (Shulchan Aruch Yore Deah 151 #12; 367, #1; based upon the Talmud b. Gittin 61a.)
Also under special circumstances Christians may participate in the burial of a Jew, If a Jew dies on the first day of a festival, Jews are not permitted to attend the burial. Since the burial may not be delayed the physical work of the burial must be done by non-Jews, It is forbidden to keep the body over to the second day so that Jews alone shall do the work of the burial (Shulchan Aruch Orach Chayyim 536 #1 and #2). This law in the Codes (it is also in the Tur) is based upon the Talmud (b, Betsa 7a). As to the specific tasks to be done by the Gentiles see the Talmud ad, loc., and Kitsur Shulchan Aruch 200 #1
This is, of course, a special circumstance, but it indicates that it is not contrary to Jewish law that a Gentile participate in the work of burying a Jew, Since the law permits actual participation in the burying, then surely the mere escorting of the dead is permitted; especially since the Army authorities inform us that it is impossible to assure escorts of the- religion of each deceased soldier.
Although Jewish law does not require us to insist upon a Jewish escort in the circumstances, the CANRA may nevertheless, decide that a Jewish escort is desirable. In that case we must base our request upon another ground than a requirement of Jewish law. We may state that the participation in the burial of the dead is for Jews a sacred privilege. Organizations which devote themselves to this task are called "Holy Societies". We, therefore, ask the privilege of adding a Jewish veteran to the official escort pro- d by the Army, Such a request if granted would involve a great deal of planning and considerable expense, and the CANRA will have to decide whether in the light of all the above mentioned considerations it will undertake the task.
CREMATION OF AMPUTATED PORTIONS OF THE BODY
The following question has been asked by a chaplain:
"Under the present law. when a veteran in a Veterans' Administration Hospital is operated on, the part of the body that is removed has to be cremated. The question is whether or not historic Jewish tradition calls for burial in a Jewish cemetery of the parts which are removed through surgical operation. "
It is the well established procedure from ancient times that parts removed from a body of a living person should be buried. In the Babylonian Talmud (b. Kethuvoth 20b) in speaking of a cemetery; Rabbi Hanina says "There the diseased limbs (which have been cut off) are buried".. In other words, even in Talmudic times it was taken as an established procedure. The reason for the burial of limbs taken from a living person is not identical with the reason for the burial of the body of the dead. The body of the dead must be buried either out of respect for the dead (mishum bizayon) or because burial in the ground is considered atonement (kapparah). Neither of these two motivations is the reason for the universal custom of the burial of limbs from the living, The reason in this regard is the ritual uncleanness which is brought about by contact with a dead body. The law is clear that contact with a limb from a living person is a source of ritual uncleanness just as much as a dead body would be. This law goes back to the Mishnah (Eduyoth VI No, 3) and is clearly stated by Maimonides ("Yad" Hilchoth Tumath Ha-Meth II No, 3): "The limb cut from a living man is as unclean as a whole corpse."
It should be stated that these laws of unclean-ness apply nowadays only to the contact of priests with dead bodies or parts of dead bodies. They do not apply to contact of non-priests with dead bodies, inasmuch as all the laws of unclean contact apply only to the Temple in Jerusalem (See Maimonides, Yad, Hilchoth Tumath Ochlin XVI, 8,) and are still kept applicable to priests.
While there has been the custom to bury amputated limbs, there is no law that the specific mode of disposal be burial and not (for example) burning. With regard to the body of the dead the law requires burial as a specific mode of disposal, since the earth provides atonement (or as an alternate explanation, it is a disgrace to the dead to remain unburied). But as to amputated limbs of the living, neither "atonement" nor "disgrace" apply. See Jacob Reischer (Shevuth Yakov II, 10.) who specifically makes this point, and also Ezekiel Landau (in Noda Bi'Yehuda II Y.D. #209). Jacob Reischer therefore concludes that since burial as such is not mandatory, one may simply put the limb away in a room where priests are not likely to come into contact with it.
Jewish law therefore does not specifically require burial of amputated limbs. If, of course, the patient or his family prefer to have the limb buried, the law has no objection to it, and indeed this has been the custom. But the law requires merely disposal of it so that no priest be defiled by contact with it. If it is the procedure of the hospital to burn the limbs, Jewish law has no objection to the procedure.
Should parents or other close relatives of soldiers or ex-soldiers who have died in a veterans' hospital consent to the request of the hospital authorities to permit autopsy?
There are certain principles in the Talmud which are used by Rabbinic authorities in discussing the question of autopsy. First of all, it is prohibited unnecessarily to delay the burial of the dead, and also, it is forbidden to deface or to shame the dead ("nivvul" or "bizayon"). On the other hand there is the general principle that saving a life voids all the prohibitions in the law except those of idolatry, adultery or murder. There is one specific case in the Talmud in b Chullin IIb in which there is discussion of whether a body should be cut up for the benefit of the living, as in a case where a man is accused of murder and it is a question whether the victim was not dying anyhow. The Talmud takes for granted that to save the life of the accused it would be permitted to cut the body and investigate.
However, the Talmud does not specifically deal with the question of autopsy for the benefit of medical science which may save the lives of others, and the Shulchan Aruch does not mention at all any prohibition of autopsy.
Later authorities, beginning with Ezekiel Landau (1713-1793), deal with this question to a considerable extent, There is no doubt that the overwhelming body of rabbinical opinion would prohibit the turning over of Jewish bodies to medical schools, for there the body would be cut up completely for the sake of teaching anatomy and would never come to burial. But as for an autopsy by physicians in a hospital for the sake of discovering the cause of death in order to help other patients there is some variety of opinion. The strictest of all in this matter is Jacob Ettlinger of Altona (1798-1871) who would prohibit it entirely unless a man, before his death, agreed to turn over his body for autopsy. (Binyan Zion #170-171.) But the two classic authorities, Ezekiel Landau (in "Noda bi'Yehuda", II, Yore Deah #210) and Moses Sofer (in "Chatham Sofer", Yore Deah #336) both agree that while autopsy would not be permitted for the general advancement of medical science, merely upon the general expectation that something might be learned from the autopsy, nevertheless if there were an invalid present with that same disease who therefore might be benefited by the autopsy, then it would be permitted, for then the principle that the saving of a life voids the other commandments would definitely and specifically apply.
The Committee of the CANRA makes no general decision on this question to be applicable to civilian life, but the military situation in veterans' hospitals is somewhat different from civil life. First of all, military hospitals are very large and a vast number of patients are present in the building. Secondly, many of these patients suffer from diseases and wounds caused by the war, and, therefore, there is a great similarity in the sicknesses encountered. Hence the probabilities are very great in a veterans' hospital that there is actually present more than one patient with the same sickness as that of which this patient has died. On that basis it would seem that the conditions set by Ezekiel Landau and Moses Sofer would apply affirmatively to the veterans' hospitals. It is of course, to be understood that the body should not be defaced more than absolutely essential and that the burial be not unduly delayed.
Inasmuch as there are grounds for religious scruples in this matter, the request coming from the hospital authorities should make it clear that they are asking for an autopsy, and instead of merely saying "scientific examination of the body is requested" they should say "scientific examination (autopsy) of the body is requested."
We are informed that the Chief Rabbinate of Palestine has entered into an agreement with the Rothschild University Hospital of the Hadassah permitting autopsy upon a number of grounds, some of which go beyond those mentioned above. It permits autopsy as does the above responsum for the purpose of saving the life of a patient, need not be within the hospital but may be outside of the hospital. Other grounds for autopsy in accordance with this agreement are when the physicians are unable to state the cause of death without an autopsy, or in the case of hereditary diseases where it is necessary to guide the families as to methods of protective caution.
The Chief Rabbinate requires a certificate from the physicians as to the reasons for the autopsy and also consultation with the rabbinate in cases of hereditary disease.
The ground for autopsy given in our responsum is that in the large veterans hospitals where most of the sicknesses are war-caused sicknesses there is strong likelihood of a patient being present with the same disease as the deceased, This reasoning is strengthened by the broader opinion given by the Chief Rabbinate of Palestine.
BURIAL OF ASHES OF CREMATED SOLDIERS
A veteran died in the Japanese Prisoner of War Camp at Osaka, October 19, 1945, and the U.S. Army asked of our committee the following questions:
a. Does Jewish law permit cremation?
b. Does Jewish law permit burial of cremated bodies in a Jewish cemetery?
c. Is there any requirement of a special place in this cemetery where the urn is to be buried?
d. Can the urn be buried separately, or must it be buried in a casket?
e. Do you have a regulation size grave or a smaller grave?
f, Do you have a similar service as in all other services for repatriated bodies?
The general question of cremation and the Jewish law does not need to be restudied. The overwhelming opinion is that cremation is forbidden, although it should be noted that Michael Rigger in the last essay of his book, "Halachos Va'aggados", re-examines the entire relevant Talmudic and post-Talmudic material in order to prove that cremation is permitted. However, almost all other opinions declared it prohibited.
As to the burial in a Jewish cemetery of the ashes of one who has been cremated, there is less unanimity of opinion. Most of the opinions prohibiting such burial were collected by Meir Lerner of Altona, Germany, in his book, "Chaye Olam". However, the opposite side of this question was taken by his contemporary, Simon Deutsch of Fuerth, in the book "Or Ho-emeth".
Furthermore, an absolute permission for the burial of the ashes of the cremated is given in the booklet on the subject, "Ya'aney Boesh", by the great Italian rabbi, Elijah ben Amozegh. In this booklet; the bulk of which is devoted to proving that cremation is forbidden by Jewish law, he ends by saying, however; that not only is it permitted to bury the ashes, but that it is even a mitzvah to rescue for burial as much of the body as possible, in this case, the ashes.
It is not necessary for us to decide the moot question as to whether burial of cremated ashes is in general permitted since the burial of the ashes of this soldier forms a special case and there will be other special cases like it. This soldier was not cremated by the United States Army which does not practice cremation, but by the Japanese in the prison camp where he died. In this case the situation of the ashes is exactly the same as the situation of the ashes of those who were murdered by the Nazis and whose ashes were sent to the nearest of kin by them. They belong to the category described by Maimonides in "Hilchos Ovel" I 9 namely those wh are killed by heathen governments (Malchuth Akum) and are not to be deprived of any of the rituals involved in mourning or burial, (Ain monin mehem kol dovor,) These soldiers, victims of enemy cruelty whose bodies were cremated without their prior consent or the consent of their relatives, must not be deprived of any of the traditional Jewish rites.
Moreover, in order not to give the impression that the burial of the ashes of the cremated is to be permitted in general, we advise that the urn be placed in a regular sized coffin and buried in a regular size grave: Besides, for the sake of diminishing the grief (agmath nefesh) of the relatives, it is better if a regular coffin is used and no difference be made from other funerals of the repatriated dead.
We have been informed that in the case of the ashes of the soldier mentioned above, the military authorities had agreed to put the ashes in a container and the container into a regular coffin. There is certainly no reason why the container should be removed from the coffin. The coffin, as it is delivered should be buried with the regular ritual used for all repatriated dead.
WASHING OF BODIES AND BRONZE CASKETS
We have been asked two questions with regard to the procedure which should be followed when the bodies of soldiers who died overseas are brought back to the United States:
(a) Should the bodies be taken out of the caskets and washed, inasmuch as the ritual washing, tahara, was very likely not performed overseas?
(b) Since the bodies will be brought in closed bronze caskets. should the bodies be transferred to the open wooden caskets before re-burial in a Jewish cemetery?
The CANRA is no longer directly concerned with these questions, When the bodies are turned over to the families, those families can ask their own rabbi for a decision. This matter has become a civil matter.
However, many are asking us for our recommendation. We, therefore, offer the following opinion.
(a) As to tahara. The general attitude of the Jewish law is against unnecessary disturbing of the body, chiefly for the reason of nivvul hameth Even for the purpose of putting on shrouds it is forbidden to remove the body from the coffin, (See our earlier responsum on this matter and also Dudaey Hasodeh #26.) Also, when a body was given incomplete tahara (i.e. less than nine kabs of water were used) the question is discussed in various responsa whether the body should be disinterred for the purpose of giving it a complete tahara. And the answer given is that the body should not be disturbed (see authorities cited in "Ach L'Tsarah," page 60. note 2). Certainly in the case of the bodies brought from overseas, in which the process of decay is well advanced, nivvul hameth applies more completely than in bodies just recently buried. Moreover, many bodies were buried on the battlefield in a condition in which tahara was not permissible (i.e. with the blood of wounds). Besides, tahara of the soldiers' remains, except in rare cases of embalming is practically impossible. Therefore, no attempt should be made to take out the remains for the purpose of attempting tahara.
(b) There are many practical reasons why the casket in which the body is brought from overseas should not be opened. It is impossible to know what the condition of the body was when it was placed in the casket originally, or to estimate the state of decomposition after all this time has passed since the original burial.
However, although the practical necessities would require burying the body in the receptacle in which it is delivered by the government to the family, the question is whether this is at all permissible according to Jewish law. There is, of course, the general legal objection to disturbing the remains unduly. On the other hand, there is some objection to a metal casket. The fact of the matter is that even a complete wooden casket has no firm legal basis, the law requiring that the body should be actually buried in the earth. See Nachmanides quoted by Karo to Tur Yore Deah 363, who says that the use of the coffin in Talmudic times was only for the bones after the flesh decayed. The only Scriptural warrant for a wooden casket seems to be the midrash in Genesis Rabba Chapter 19, Section 8, based upon the phrase in Genesis 3;8; "And Adam hid himself from before the Lord among the trees (etz) of the garden.- To this the Midrash comments: This is the hint that his descendants will be buried in coffins of wood. Thelaw, Tur Yore Deah 363 and Shulchan Aruch, prefers burial directly in the earth. It seems to concede burial in a coffin provided that the coffin is open to the earth at the bottom. Then a concession is made to the completely closed coffin provided holes are bored in it to permit contact with the earth. However, Karo, Yore Deah 363 #5, speaks of stone caskets; and the Talmud (b. Sota 13a) says that Joseph's coffin was made of metal.
While the custom of using metal coffins never did become general (as did the use of wooden coffins), perhaps in the present special circumstances it may be sufficient to bore holes in the metal casket for contact with the earth. However, even piercing the casket is not entirely necessary. Eliezer Deutsch (in Dudaey Hasodeh #26) discusses an analogous question. A righteous man was buried in a double coffin which, at the doctor's orders, was not pierced for direct contact with the earth. The question 'was asked of Eliezer Deutsch whether or not the grave should be opened in order to bore holes in the coffin. He said that it should not be done, because a righteous man does not need the atonement (kapparah) of direct contact with the earth; and that when Judah Hannasi asked that his coffin be pierced (j, Kilaim 32b) he asked it out of modesty, in order to indicate that he did not claim to possess special righteousness. Besides, to hammer at the coffin with tools and to run the risk of piercing the body is certainly an insult (bizoyon to the dead).
May we not say, therefore, that while indeed it is not the custom to use a metal casket, yet these soldiers who gave up their life for a righteous cause be deemed righteous and therefore do not necessarily need direct contact with the earth; that therefore the casket be not disturbed or pierced but they be buried in the earth as received. Moreover, all these bodies had previously been buried overseas in wooden coffins and indeed some without coffins. Thus, the purpose of burial in contact with earth (namely, atonement, Deuteronomy 32:43) has been amply fulfilled.
As for the permissibility of burial in a metal casket, the proof that it is permissible is given in "Ben Zekunim" by Rabbi Jacob Bruell (published in Drohobicz in 1889 - p. 29ff) and developed fully by Rabbi Jacob Levinson in his "Hatorah Vhamada" (New York, 1932 - p. 66ff).
If certain cemetery authorities nevertheless insist that the metal government casket cannot be used and that a wooden casket be used, what shall be done with the metal casket? The law is generally that a casket made for one body may not be used for any other body and is Assur b'Hanaah, In that case it could not be sold to a Gentile undertaker or for metal. But it may be argued that since the bronze casket is not considered by Jewish custom to be a proper coffin at all, it may be used for any purpose (cf. Ach L'tzarah, page 63). But the Shulchan Aruch Yore Deah 363 #5 (based upon Semachot XIII) says specifically that a coffin from which a body has been removed be destroyed, and that if it is a stone coffin it should be broken up, and if it is a wooden coffin it should be burned.
BURIAL IN NATIONAL CEMETERIES
The government is establishing a number of national cemeteries (in addition to the cemetery at Arlington). We have been asked whether Jewish law permits the burial of the body of Jews in such a cemetery and whether a rabbi may officiate at such a burial.
The soldiers and sailors whose bodies are now being brought back from overseas were buried where they fell. The graves of Christians and Jews were side by side. Crosses and Stars of David were near each other, an evidence of comradeship in duty and fellowship in death. If in these now permanent national cemeteries there would be no Stars of David at all, it might lead some to unjust conclusions. It is a question whether the principle of Mipne Darche Sholom is not to some extent involved.
However, such a general principle cannot be decisively invoked if Jewish law would clearly prohibit such burial.
But is it clearly prohibited? While universal and longstanding custom requires burial of a Jew in a Jewish cemetery (Kever Yisrael) there is no definite law in the Talmud or the great codes either requiring a community to establish a Jewish cemetery or requiring that a Jew be buried only in such a cemetery.
The only requirements in the law as to place of burial are that a man be buried in his own property (B'toch Shelo) (b. Baba Bathra 112a), and that we may not bury a wicked man next to a righteous man (b. Sanhedrin 47a).
One rabbi about a century ago made an attempt on the basis of these two laws to establish a legal foundation for the requirement to have Jewish cemeteries (Eleazar Spiro of Muncacz in Minhath Eleazar II, 41) (also Dudaey Hasodeh #33, #66, #89).
Therefore, it can at most be said only that it is against general custom (minhag) for a Jew to be buried elsewhere than in a Jewish cemetery but it cannot be said that such burial is forbidden. Therefore, it is suggested that each family ask its own rabbi for his decision. The rabbi will then decide also whether he will officiate.
RITUAL OF MOURNING FOR REINTERMENT
The question has been asked as to what mourning ritual should be followed when the body of a repatriated soldier is returned for burial.
The laws dealing with the ritual in disinterment and reinterment are all based upon the Palestinian Talmud, Moed Katan, I. 5, where it is clear that all the ritual mentioned concerns only the disinterring of the bones and that there is no ritual of mourning for their reinterment.
If the mourners know the exact hour of the disinterment, they should observe the rites of mourning up to the end of that day (i.e. the day of the disinterment). Also at this time the relatives should perform K'riah. However, it is noteworthy that even these observances are not encouraged.
Moses Sofer in his famous responsum on the subject ("Chatham Sofer" Yore Deah #353) says that when there is considerable disinterment, as when many bodies have to be removed, the rabbi and the rabbinical court should issue a decree forbidding anybody to tell the family so that they should not need to mourn and perform K'riah.
There is a distinct possibility that even these observances which Moses Sofer discourages are not applicable at all inasmuch as the bones are removed in a closed coffin. There is considerable discussion in the Palestinian Talmud to the effect that the laws of mourning apply at the dis-interment only when the bones are carried loosely in a garment, but not if carried in a coffin as they are here.
Similarly the Shulchan Aruch, Yore Deah #403 and the Aruch Ha Shulchan likewise speak only of K'riah and mourning at the time of the disinterment.
As for observances in this country when the bodies are reinterred, there should be no K'riah, but Moses Sofer in the responsum quoted says that after the burial there should be mourning ritual (i.e. sitting on the ground, etc.) until the evening of that day.