From early 1843 until August 1859, the only authorized burial location within the city of Chicago was in a location then called City Cemetery. This plot also included the first Jewish cemetery in the city of Chicago. During the Civil War, this graveyard served as the final resting place for thousands of confederate prisoners of war who died in nearby Camp Douglas, which was used as a prison camp. About 145 years ago, this cemetery was closed to new burials, and many of its graves were later exhumed. Subsequently, the city constructed residential and commercial areas, city streets, and a major park, Lincoln Park, which includes a zoo and museums, atop the seventy-two acres of the cemetery. Lincoln Park and its zoo and museums are very popular, particularly as locations for family chol hamoed outings. Our halachic question is: May a kohein visit these parks or must he be concerned about the tumas meis to which he may be exposing himself?
The Historical Background
In 5603/1843, Chicago designated a sixty-acre area as a cemetery, and three years later a Jewish organization paid $45 to purchase part of this land as its own cemetery. Four years later, in 5610/1850, the city purchased an adjacent area of twelve more acres to expand the cemetery, so that it now encompassed 72 acres.[i]
However, in the late 1850’s, a prominent physician, Dr. John Rauch, requested that the cemetery be closed because of concern that it was too close to Lake Michigan, which then served as the city’s water supply, and that the cemetery might therefore spread disease. Until that point, this cemetery was the only authorized one in the city, and included a large “potters’ field,” or area for burying the destitute and the unidentified.
Shortly thereafter, an area immediately north of the cemetery was set aside as a park. During this time, the city gradually ceased using the cemetery. However, an estimated 4,000 confederates who died in custody were interred in the cemetery’s potters’ field. At one time, the cemetery held an estimated 35,000 graves, including the resting place for those who made the ultimate sacrifice for the Confederacy.
In 5626/1866 the cemetery was officially closed, partly due to Dr. Rauch's health concerns. By now, the Civil War was over and the surviving confederate captives had been repatriated. The city officially decided to move the remains buried in this cemetery to other locations. Over the next thirty years there are numerous scattered reports of moving the graves to new locations. Despite attempts to remove graves, a conservative speculation is that the majority of the remains were never removed.
Fast forward: In 5722/1962, workers digging a foundation for the zoo’s new barn discovered a skeleton and a casket. They reburied the casket in situ and poured the foundation right on top. During 5758/1998, workers constructing a parking lot in the area discovered 81 skeletons and an iron casket containing a cadaver. There are at least nineteen more reports of human bones found in the disused cemetery's location.
Thus, the shailah is whether a kohein may walk through the streets and businesses of this old-time burial ground.
Steve Katz lives and works in Chicago and is well aware of the history of this park and its environs. His boss assigns him to attend a business meeting at a hotel that is located in the area that was originally the cemetery. Since Steve is a kohein, may he attend the meeting? If he cannot, how will he explain this to his gentile employer?
Steve made an appointment to discuss the problem with his rav, whom he knows will explain to him all aspects of the shailah.
WILL THE TUMAH RISE FROM THE GROUND?
Rav Goldberg begins by explaining some of the halachic background. When human remains are buried, under most circumstances the tumah rises directly up and contaminates the area above it. If a building is constructed directly above a grave, tumah may spread throughout that building, although sometimes it may spread only through the bottom floor and possibly only into the room constructed directly above the grave. We will leave the details of these laws for another time.
On the other hand, if there is no building, tree or overhang over the gravesite, one becomes tamei only if one walks or stands directly above the gravesite.
SAFEK TUMAH BIRSHUS HARABIM
“However, the specific situation that you are asking about may be more lenient,” explains the Rav, “because of a concept called safek tumah birshus harabim, sefeiko tahor, which means, literally, that if there is doubt about whether something in a public area became tamei, the halacha is that it remains tahor (see Nazir 57a). Notwithstanding our usual assumption that safek de’oraysa lechumra (we rule strictly on doubts concerning Torah prohibitions), we rule leniently concerning a doubt of matters of tumah when the question occurred in a ‘public’ area, a term we will define shortly.”
There is also an inverse principle that safek tumah birshus hayachid, sefeiko tamei, which means that if there is doubt whether someone or something contracted tumah when it was in a private area, it is considered tamei.
WHAT IS PUBLIC?
For the purposes of these two principles, “public” is defined as an area to which at least three people have ready access at any one time, and “private” means a place that is accessible to fewer than three people. Thus, someone who discovers that he may have become tamei while walking down the street remains tahor. However, if he discovers that he may have become tamei while he was in a private area he is tamei. (All of these laws are derived from pesukim.)
“I know that there is more to explain,” interjects Steve, “but it would appear that one could have a situation in which one may enter a building, but one may not use the bathrooms or have a private interview.”
“It is certainly true,” responded the sage, “that someone entering a public building and discovering that he may have become tamei while there, would remain tahor, whereas if he entered a similar private area, he would be considered tamei. However, there are other factors to consider before we reach a definitive ruling.”
MAY THE KOHEIN ENTER?
At this point, Steve raised a sophisticated point:
“I understand that someone who entered this area would afterwards be considered tahor. But may I enter the area knowing that I may be in contact with tumas meis?”
The Rav explained: “You are asking whether a kohein may lechatchilah rely on the principle of safek tumah birshus harabim, or whether this principle is applied only after the fact. In general, one must be stringent when there is concern that one may be violating a Torah prohibition, and it is prohibited min haTorah for a kohein to contract tumah from a meis. Thus, one might assume that a kohein should not enter an area where there is a possibility of tumah. However, many authorities rule leniently when dealing with a safek tumah birshus harabim. They contend that the Torah only prohibited a kohein from becoming tamei, but not from entering a place involving a safek where he will be ruled as tahor (Tosafos, Kesubos 28b s.v. Beis; Shu”t Rashba #83; Binas Odom, Klal 157; Pischei Teshuvah 369:4, quoting Shu”t Chasam Sofer, Yoreh Deah; Minchas Chinuch 263:13 s.v. Vehinei). Thus, a kohein could enter any publicly available area, including an office or residential building constructed over the city's defunct cemetery. However, he could not enter an area restricted to less than three people.
“Others contend that since the Torah prohibits a kohein from being in contact with a meis, he is similarly prohibited, because of safek de’oraysah lechumra, to be in a place where he might be exposed to a meis” (Tzelach, Brachos 19b; Achiezer 3:1:1, 3:65:7; Kovetz Shiurim; Teshuvos Vehanhagos).
Steve raised another point:
“In fact, we know that this area was once a cemetery, and we are fairly certain that not all the graves were exhumed. Does this make matters worse?”
“You are raising a very insightful question. Even assuming that a kohein can rely on the principle of safek tumah bireshus harabim, this principle might not apply here since we know that this area was once a cemetery, and we are fairly certain that some graves remain. Thus we have a chazakah, status quo, that the area was once tamei meis, and we are uncertain whether the tumah was removed. In such a situation, perhaps the principle of safek tumah birshus harabim does not apply since this rule may apply only where there is no status quo. (In Mikvaos 2:2, this seems to be the subject of a dispute between Tannaim. See also Tosafos, Niddah 2a s.v. Vehillel.)
“Nevertheless, in our particular case, we have some basis to be lenient. Although this entire area was once set aside as a cemetery, it is very unlikely that it became filled wall-to-wall with graves, and only the places directly above the graves were tamei. Thus, any place within the cemetery was tamei because of doubt, not because of certainty.
JEWISH VERSUS NON-JEWISH GRAVES
“There is another reason to permit entering the hotel for your meeting. People who researched the area have ascertained the exact location of the original Jewish cemetery, which is now the location of the ball fields. Thus, although I would advise you and your sons not to play ball on those particular diamonds, we can be more lenient regarding entering the hotel constructed in the area, as I will explain.”
Steve replied: “But how can we be certain that no Jews were ever buried in the non-Jewish cemetery? There definitely were Jewish soldiers in the confederate army, and it is likely that some Jews were buried in the non-Jewish cemetery or in the potters’ field.”
His Rav replied: “You are correct that some Jews were probably buried in the non-Jewish parts of the cemetery. Nevertheless, since we do not know this for certain, we may work with the assumption that there are no Jews there.”
Steve was not satisfied. “But even a non-Jewish body conveys tumah, so I still have a problem.”
“This depends on whether remains of a gentile convey tumas ohel, that is by being under the same roof, cover, or overhang that is at least three inches (a tefach) wide. This sometimes includes being in the same building. It is also curious that a living person is also considered an ohel to spread tumah.
DO THE REMAINS OF A NON-JEW CONVEY TUMAH?
“Although virtually all authorities agree that remains of a non-Jew convey tumah through touching and carrying, the Gemara cites the opinion of Rabbi Shimon that remains of a non-Jew do not convey tumas ohel (Yevamos 61a). The Rishonim dispute whether this position is held universally, and, in addition, whether this is the way we rule. It appears that most Rishonim conclude that a kohein may enter a room containing the remains of a gentile because they follow Rabbi Shimon’s position. Others contend that we do not follow Rabbi Shimon’s position and that tumah of a gentile does spread through ohel. The Shulchan Aruch advises a kohein not to walk over the graves of non-Jews (Yoreh Deah 372:2).”
At this point, Steve commented. “It seems from what you are saying that it is not a good idea for a kohein to enter buildings in this area, but one may enter if there is a pressing reason” (see Shu”t Avnei Nezer, Yoreh Deah #470).
The Rav responded: “This is the conclusion of many authorities. Some are even more lenient. One famous responsum permits a kohein to enter a field that he purchased without realizing that it contained an unmarked gentile cemetery. The author permits this by combining two different leniencies, each of which is somewhat questionable. One leniency is that perhaps a gentile does not spread tumah through ohel, and the other leniency is that some early authorities contend that once a kohein becomes tamei, he is not forbidden from making himself tamei again (Raavad, Hil. Nezirus 5:15, as explained by Mishneh Lamelech, Hilchos Aveil 3:1). Although we do not rule like this last opinion, the Avnei Nezer contends that one can combine both of these ideas to permit the kohein who purchased this field without realizing the problem to utilize his purchase (Shu”t Avnei Nezer, Yoreh Deah #466).”
“This case of the Avnei Nezer sounds like a much more difficult situation in which to rule leniently than mine,” noted Steve. “After all, in his case there was no attempt to clear out the cemetery.”
“You are correct. For this reason, I would certainly not find fault with someone who chooses to be lenient and indiscriminately enters the area that was only a gentile cemetery, relying on the ruling that gentile remains do not contaminate through ohel, and on the principle of safek tumah birshus harabim.”
“It still seems that one should avoid the ball fields that are located right over the old Jewish cemetery.”
“I would certainly advise this,” closed the Rav.
So Steve does not need to explain to his boss that he cannot attend business meetings at the hotel because of lost confederate ghosts.
Although there may be little reason to panic over such issues, as we have discussed, one should be aware that it is not infrequent to discover old cemeteries beneath modern cities. Cemeteries, particularly Jewish ones, were always consecrated on sites outside the city limits in order to avoid the obvious problems of tumah affecting kohanim. Unfortunately, when Jews were exiled, the whereabouts of many cemeteries became forgotten. In addition, as cities expand, they include areas outside the city’s limits that often include older cemeteries. Thus, these problems will most likely continue. In each case, a posek must be consulted to find out whether, and to what extent, a kohein need be concerned.
Also please note that an article on this topic was written by Rabbi Mordechai Millunchek in his book Midarchei Hakohanim.