Chatam Sofer — Yoreh Deah 333

On the eve of Shabbat Parashat Shoftim 5571 (1811), a holy man who had been killed by gentile murderers was brought here and buried on the following Sunday. His name was Rabbi David bar R. Yitzchak Schacharlis, of blessed memory, may God avenge his blood.

Since the elders and heads of the burial society were in the market of Pest and those remaining here were not well-versed in the customs of the society, they asked me whether to bury him in his ancestral grave or to assign him a separate burial place. This was because they had heard it said that the law of the four capital punishments has not been abolished, and that one who is liable to a court-imposed death is not buried in the graves of his ancestors.

I searched thoroughly in the writings of the early authorities and in the Shulchan Aruch, but I found nothing explicit regarding this matter. However, I said that if the members of the burial society were here and this was their established practice, I would not protest. Yet from me such a ruling shall not go forth; rather, he should be buried in his ancestral grave according to his proper honor.

I found in Sefer Chassidim (siman 223) a story of a wicked person who was buried among those who were killed, and they came in a dream requesting that he be removed from among them. From there it appears the opposite: that it was customary to bury those who were killed together with others, and only in this case was a wicked person mistakenly buried among them and had to be removed.

Furthermore, there is no substance in their claim that “the law of the four capital punishments has not been abolished,” for one who is liable to the sword is handed over to the authorities, but it cannot be said that all who are killed fall into this category. Even a murderer lying in ambush or one killed in an ambush does not fall under this principle. Therefore, the slain person should be presumed to be righteous and of upright standing.

There is also a clear proof from the Talmud in Sanhedrin, where it is explained that there is a distinction between one killed by gentiles and one executed by a Jewish court. One killed by gentiles attains atonement immediately, whereas one executed by a court does not attain atonement until the flesh has decomposed. From here it follows that he may be buried immediately according to his honor, and there is no reason to delay his burial in his ancestral grave.

Therefore it seems that the earlier custom was different, in times when it was customary to collect the bones after the flesh had decomposed. But today, since this practice has ceased, there is no reason to be stringent in this matter. Thus, it is proper to bury him in his ancestral grave according to his honor. All this I have written according to my humble understanding, and may God save us from error.