Rudolf Bultmann famously claimed that the story of the empty tomb was ‘completely secondary’.Footnote 1 He did, however, accept the historicity of Mark 15.43 and so did not deny that Joseph of Arimathaea buried Jesus.Footnote 2 John Dominic Crossan has advanced the position by hypothesizing that Jesus' body was thrown into a shallow grave and consumed by dogs. With reference to Mark 15.42–46, he asserts, ‘Moreover, far from a hurried, indifferent, and shallow grave barely covered with stones from which the scavenging dogs would easily and swiftly unbury the body there is now a rock tomb and a heavy rolling stone for closure and defense’. He bases this thesis on Gos. Pet. 5.15–6.21 where the Jews allegedly bury Jesus, which he takes to be the beginning of the tradition of Jesus' burial that the NT developed into a tradition of burial by friends.Footnote 3 What is curious about this position is that Crossan leaves out Gos. Pet. 6.23 where the Jews give the body to Joseph for burial (presumably because 6.23 is not ‘independent of the NT’).Footnote 4 The Jews in Gos. Pet. 6.21 did not bury Jesus, but laid him on the ground (ἔθηκαν αὐτὸν ἐπὶ τῆς γῆς—a translation Crossan does not contest).Footnote 5 There is no reference to a shallow grave covered with rocks. He ends his quotation with 6.21.
My goal in this essay is not so much to ‘refute’ Crossan's thesis but to consider what can be known about the disposal of crucified bodies in the Roman world.Footnote 6 The argument will lead to the conclusion that the gospels' narrative of the burial by Joseph of Arimathaea would have been believable to Greco-Roman readers and historically credible. The flow of the argument comprises five elements:
1. An overview of the Roman statutes concerning the bodies of condemned criminals.
2. Since criminals guilty of maiestas might not be buried, it is necessary to discuss the legal foundation for crucifixions in first-century Palestine with particular reference to that of Jesus and others executed for political crimes.
3. A survey of the question of mass graves in Roman society.
4. A review and analysis of texts supporting the denial of burial for some crucified bodies, which then were probably consumed by animals.
5. A review and analysis of texts supporting the burial of other crucified bodies.
6. Conclusions.
1. Roman Law and the Corpses of the Damnati
Romans were not concerned to leave descriptions of crucifixion. The texts that contain details are brief.Footnote 7 They are even more sparing about descriptions of the ultimate fate of the corpses of those who had been crucified. The jurist Ulpian describes, in the early third century, in book nine of his Duties of the Proconsul, the legal situation he knows of that governs the disposal of executed bodies:
Corpora eorum qui capite damnantur cognatis ipsorum neganda non sunt: et id se observasse etiam divus Augustus libro decimo de vita sua scribit. Hodie autem eorum, in quos animadvertitur, corpora non aliter sepeliuntur, quam si fuerit petitum et permissum, et nonnumquam non permittitur, maxime maiestatis causa damnatorum. Eorum quoque corpora, qui exurendi damnantur, peti possunt, scilicet ut ossa et cineres collecta sepulturae tradi possint.
The corpses of those who were sentenced to die are not to be withheld from their relatives: the divine Augustus writes in the tenth book of his autobiography that he had observed this rule. Today, however, the corpses of executed people are buried as if permission had been asked for and granted, with some exceptions, especially when the charge was high treason. Even the bodies of those condemned to be burned at the stake can be claimed, obviously so that bones and ashes can be collected and buried.Footnote 8
Ulpian pictures an orderly procedure of asking for permission to bury the bodies of the condemned. Augustus and Tiberius were not always willing to give bodies back to the families. The corpse of one of Brutus's allies was given to birds of prey.Footnote 9 In the purges after Sejanus's fall (during Tiberius's reign) many committed suicide, like Pomponius Labeo, for fear of the executioner because those who were condemned to death were deprived of their possessions and were refused burial.Footnote 10 The bodies of Sejanus's allies were dragged to the Tiber.Footnote 11 One of the clearest statements about the refusal of burial for the corpses of some executed individuals is from Eusebius who described the persecution of Lyons during the reign of Marcus Aurelius. The bodies of the martyrs were on public view for six days, and then were burned. Their ashes were then thrown into the Rhone River.Footnote 12
The Digest continues with a quotation of Ps. Paulus's Sententiae, a work written toward the end of the third century: Corpora animadversorum quibuslibet petentibus ad sepulturam danda sunt (The bodies of executed persons are to be granted to any who seek them for burial).Footnote 13 Although Ps. Paulus is late, the tradition he hands on may be much earlier, and the gospels confirm his picture if they are correct in their claim that Joseph of Arimathaea asked for and was given the corpse of Jesus. Ulpian leaves the crime of high treason or maiestas as one of the major exceptions to the rule, but it is highly unlikely Jesus was tried for that crime.Footnote 14 I will not belabor the point that this ‘exception’ Ulpian mentions is dated closer to his era than that of Augustus.
2. Crucifixion in Roman Palestine
If Jesus' crucifixion was a political execution in Palestine, one might conclude that his body would be treated with special disdain and denied burial. What can be shown here is that it probably was a political execution, though not for maiestas since Jesus was a peregrinus (i.e., not a Roman citizen). Even so burial is not out of the question as archaeology shows.
2.1. Crucifixions in Palestine as Political Executions
Josephus envisions all the crucifixions in Roman Palestine as political executions. It is possible that a prefect or procurator, however, could have crucified slaves and peregrini for other crimes.Footnote 15 Martin Hengel makes an important point about the evidence in Tacitus and Josephus: ‘What would we know about the crucifixions in Palestine without Josephus? Tacitus, Histories 5.8–13, does not say a word about them’.Footnote 16 It is important to place Pilate's execution of Jesus in context of the known crucifixions of that period. In 4 bce after the death of Herod, the governor of Syria, Quintilius Varus, put down the sedition by imprisoning the less tumultuous and crucifying about 2000 individuals:
Οὔαρος δὲ κατὰ τὴν χώραν πέμψας τοῦ στρατοῦ μέρος ἐπεζήτει τοὺς αἰτίους τῆς ἀποστάσεως. καὶ σημαινομένων τοὺς μὲν ἐκόλασεν ὡς αἰτιωτάτους, εἰσὶ δʼ οὓς καὶ ἀφῆκεν· ἐγίνοντο δὲ οἱ διὰ ταύτην τὴν αἰτίαν σταυρωθέντες δισχίλιοι.
Varus sent part of the army throughout the land seeking the instigators of the sedition. And when they were discovered, some he punished as the guiltiest, but others he released. He crucified 2000 on this charge.Footnote 17
The version in the Jewish War also emphasizes Varus's search for the fomenters of the sedition (τοὺς αἰτίους τοῦ κινήματος), his decision to imprison the lesser of the troublemakers (τοὺς μὲν ἧττον θορυβώδεις φανέντας), and his decision to crucify 2000 of the most guilty (τοὺς δὲ αἰτιωτάτους).Footnote 18 Josephus uses a technical term for a judicial charge (ταύτην τὴν αἰτίαν), the same term used in the Mark 15.26 (par. Matt 27.37). Presumably αἰτία is a rough equivalent for crimen (crime, charge) and ἀπόστασις an equivalent for seditio.Footnote 19 Felix, in the fifties, sent a troublemaking brigand chief named Eleazar son of Deinaeus to Rome along with his associates and crucified many of his followers:
οὗτος τόν τε ἀρχιλῃστὴν Ἐλεάζαρον ἔτεσιν εἴκοσι τὴν χώραν λῃσάμενον καὶ πολλοὺς τῶν σὺν αὐτῷ ζωγρήσας ἀνέπεμψεν εἰς Ῥώμην· τῶν δʼ ἀνασταυρωθέντων ὑπʼ αὐτοῦ λῃστῶν καὶ τῶν ἐπὶ κοινωνίᾳ φωραθέντων δημοτῶν οὓς ἐκόλασεν, ἄπειρόν τι πλῆθος ἦν.
He [Felix] captured the chief brigand Eleazar who had carried out raids in the country for twenty years and many of those who were with him and sent them to Rome. The number was limitless of the brigands crucified by him and of the populace discovered to be in association with him whom he punished.Footnote 20
Josephus had earlier made it clear that Eleazar was the leader of a band of brigands and rioters (τοῦ λῃστρικοῦ δʼ αὐτῶν καὶ στασιώδους Δειναίου τις υἱὸς Ἐλεάζαρος καὶ Ἀλέξανδρος ἐξῆρχον).Footnote 21 The other texts from Josephus are similar. In none of the texts does Josephus make an obvious appeal to any specific Roman statute that would serve as the ground for the crucifixions, but he clearly thinks that seditious activity in itself (or rather inciting sedition) warrants execution.
2.2. Jesus' Crucifixion as a Political Execution
Heinz-Wolfgang Kuhn, after his careful review of crucifixion in Roman Palestine (all are for some sort of insurrection), remarks that it is certain Jesus was executed as a rebel.Footnote 22 The titulus (placard) on the cross, ‘King of the Jews’, supports this view. One can choose, against the evidence of the gospels, to be sceptical of the content of the titulus, but the use of the titulus itself was in accord with Roman practice.Footnote 23 In Ps. Quintilian Decl. min. 380.1, a master willed that a slave should be crucified because he would not poison him (nolenti dare crucem scripsit). The slave asks for a trial before the tribunes. In the discussion, the rhetors mention the ‘description of the extreme punishment under the appropriate titulus (placard)’. D. R. Shackleton Bailey notes that the titulus would have been ‘placed at the top of the cross’—as in the gospels.Footnote 24 I imagine that was the master's intention. Even if one rejects the content of the gospels' titulus, the evidence from Josephus for crucifixions in Roman Palestine makes it likely that the charge against Jesus was political.Footnote 25
2.3. Jesus' Execution: Maiestas, Seditio, or Troublemaking
Because Ulpian mentions maiestas as a possible exception to burial of individuals condemned to death, it is necessary to discuss that as a possible charge against Jesus.Footnote 26 Although Raymond Brown and others have argued that maiestas was the charge against Jesus, it is more probable that Pilate executed him for sedition or troublemaking, especially because Jesus was a peregrinus (not a Roman citizen).Footnote 27 Since Jesus was a peregrinus, it is difficult to see that a formal charge like maiestas (or perduellio [high treason]) would be relevant.Footnote 28 I have not found any records of Roman trials in which a peregrinus was explicitly accused of maiestas by a magistrate. A. N. Sherwin-White, a meticulous classical scholar, thinks that Pilate executed Jesus on the charge of sedition.Footnote 29 The bibliography is endless, and it is not necessary to rehearse it here.Footnote 30 Brown's conclusions, in his exhaustive analysis of Jesus' passion, are careful. He writes that it is ‘debatable that maiestas was the charge’ but apparently inclines toward the possibility.Footnote 31 He thinks only John 19.12 makes the connection of maiestas against the emperor clear. Tacitus's narratives about trials for maiestas, however, have little in common with 19.12.Footnote 32 Again, it is important to emphasize that these stories do not describe the trials of peregrini for maiestas. Ulpian's discussion of maiestas envisions charges against a Roman citizen guilty of high treason against the state:
Proximum sacrilegio crimen est, quod maiestatis dicitur. Maiestatis autem crimen illud est, quod aduersus populum Romanum uel aduersus securitatem eius committitur. . . . quo armati homines cum telis lapidibusue in urbe sint conueniantue aduersus rem publicam, locaue occupentur uel templa, quoue coetus conuentusue fiat hominesue ad seditionem conuocentur: . . . quoue quis contra rem publicam arma ferat: quiue . . . feceritue dolo malo, quo hostes populi Romani consilio iuuentur aduersus rem publicam: quiue milites sollicitauerit concitaueritue, quo seditio tumultusue aduersus rem publicam fiat.
Closest to sacrilege is that crime which is called treason. 1. The crime of treason is that which is committed against the Roman people or against their safety . . . or that men armed with weapons or stones should be, or should assemble, within the city against the interests of the state, or should occupy places or temples; or that there should be an assembly or gathering or that men should be called together for seditious purposes . . . or that anyone should bear arms against the state . . . or does anything with malicious intent whereby the enemies of the Roman people may be helped with his counsel against the state; or who persuades or incites troops to make a sedition or tumult against the state.Footnote 33
Roman magistrates might have sometimes prosecuted those guilty of sedition under the lex Julia de vi publica. That law covered appeals, and one of the constitutions concerning appeals mentions sedition as an exception:
Constitutiones, quae de recipiendis nec non appellationibus loquuntur, ut nihil noui fiat, locum non habent in eorum persona, quos damnatos statim puniri publice interest: ut sunt insignes latrones uel seditionum concitatores uel duces factionum.
Imperial pronouncements that concern the admission and refusal of appeals, so that nothing will change [in the condition of the convict], have no place in case of persons, whose immediate punishment after condemnation is in the public interest: such as notorious bandits, instigators of seditions, and leaders of criminal gangs.Footnote 34
The chapter in the Digest on the lex Julia de vi publica includes this statement:
In eadem causa sunt, qui turbae seditionisue faciendae consilium inierint seruosue aut liberos homines in armis habuerint.
Under the same heading come those who have entered into a conspiracy to raise a mob or a sedition or who keep either slaves or freemen under arms.Footnote 35
Individuals guilty of repeated turbulent and seditious behavior who have already been ‘corrected’ (i.e., whipped) are punished with exile or death (Quod si ita correcti in eisdem deprehendantur, exilio puniendi sunt, nonnumquam capite plectendi, scilicet cum saepius seditiose et turbulente se gesserint . . . ).Footnote 36 In Ps. Paulus, instigators of sedition and tumult or those who incite the people, depending on their social standing, are either crucified or thrown to wild animals or exiled to an island (Auctores seditionis et tumultus vel concitatores populi pro qualitate dignitatis aut in crucem tolluntur aut bestiis obiciuntur aut in insulam deportantur).Footnote 37
Another possibility that one should consider is that provincial magistrates were sent to keep their areas quiet. Trajan told Pliny that he chose his prudence in order that he might use moderation in ordering the practices of the province and that he might enact those things which should be helpful for perpetual freedom from disturbance there (Sed ego ideo prudentiam tuam elegi, ut formandis istius prouinciae moribus ipse moderareris et ea constitueres, quae ad perpetuam eius prouinciae quietem essent profutura).Footnote 38 Ulpian wrote that it is correct for a good and serious governor to be concerned that the province which he rules is peaceful and quiet (Congruit bono et gravi praesidi curare, ut pacata atque quieta provincia sit quam regit).Footnote 39 Pilate may have identified Jesus as a troublemaker who could potentially disturb the city of Jerusalem.
Brown concludes his discussion with a statement similar to Ulpian's:
A general principle of maintaining order in a subject province rather than a specific law may have governed the treatment of a non-citizen such as Jesus. In retrospect, of course, one can find a relationship between that general principle and Roman laws against treason; but it would be wrong to imagine that the prefect consulted law books every time they had to deal with a provincial accused of a crime.Footnote 40
Probably Pilate classified Jesus' alleged crimen (crime) as seditio or troublemaking (se turbulente gessere), because of the political nature of all (or the majority of?) the crucifixions in first-century Palestine. But once he identified Jesus as a political criminal guilty of fomenting sedition, it is doubtful that he felt the need to consult juristic texts to justify execution.Footnote 41 Detlef Liebs mentions the tumultuous entry into Jerusalem and Jesus' turbulent actions in the temple against the money changers and merchants as enough to convince Pilate that Jesus was inciting the Jewish people against Rome, even though Pilate must have had his doubts concerning the accusation.Footnote 42 This is not to say Jesus was actually a political revolutionary. However Pilate viewed the seriousness of Jesus' crimen, he could not have viewed him as a truly dangerous fomenter of sedition, since he did not persecute his followers.Footnote 43
2.4. Archaeology and Political Executions in Roman Palestine
Whether Pilate viewed Jesus as guilty of inciting to sedition or just as a troublemaker, the one archaeological remnant, from the first century ce, of a known crucified individual found in a Jewish tomb in Givʿat ha-Mivtar northeast of Jerusalem shows that Pilate could still have permitted the burial of Jesus' body.Footnote 44 If Josephus is accurate in his picture of first-century crucifixions in Palestine, then Jehoḥanan was almost certainly crucified for some kind of political crime.Footnote 45 His burial is fully in accord with the picture Ulpian leaves us. Jehoḥanan's family had undoubtedly appealed to the prefect or carnifex (executioner, probably a centurion). The point is that if Jehoḥanan was guilty of some kind of brigandage/political disturbance (the two are equivalent in the crucifixions in the first century in the texts of Josephus), the prefect or centurion still allowed the burial.
At this time only four archaeological examples of individuals who suffered violence are known in the Jerusalem area. Joseph Zias writes that ‘Osteoarchaeological evidence of the well known endemic violence prevailing in Jerusalem at the time is surprisingly rare. Aside from one case of crucifixion and two decapitations along with a sword injury to the elbow, there are no reported cases from Jerusalem’.Footnote 46 All four examples (the fourth being the terribly mutilated individual in the Mount Scopus tomb) were found in the northern cemetery of Jerusalem. Zias makes the observation that ‘skeletal remains are generally recovered in a poor state of preservation because of the custom of burying the deceased in limestone caves, or, sometimes, in limestone ossuaries’.Footnote 47 This may help explain the rarity of archaeological evidence concerning crucifixion. Even if Pilate actually thought Jesus was guilty of some kind of political disturbance, he could have allowed the burial. But one cannot deny the possibility that, against the evidence of the gospels, Pilate refused to permit any kind of burial for Jesus.
3. Mass Graves
Potters' fields or mass graves were part of Roman society. Communities in the empire had to have them for the poor and for criminals. Varro (second to first century bce) mentions pits (puticuli) outside of towns where people were buried or cadavers rotted that were thrown there. They were probably open.Footnote 48 Agennius Urbicus (ca. fourth to fifth century ce) also is a witness for public graveyards for the poor and places for convicted criminals.
habent et res p(ublicae) loca suburbana inopum funeribus destinata quae loca culinas appellant. Habent et loca noxiorum poenis destinata.Footnote 49
Public entities have suburban places designated for the funerals of the poor—which they call ‘places for funeral burnt offerings’. They also have places designated for the punishment of convicted criminals.
The contractor undertaker/executioner of Puteoli agreed to this condition:
item si unco extrahere iussus erit oper(is) russat(is) id cadaver ubi plura / cadavera erunt cum tintinnabulo extrahere debebit.
If he will be commanded to drag [the cadaver] out with a hook, he must drag the cadaver itself out, his workers dressed in red, with a bell ringing, to a place where many cadavers will be.Footnote 50
The hypothetical indicates that the practice was not universal. Some corpses were abandoned in place.Footnote 51 Some were buried. Jean-Jacques Aubert thinks this may be similar to the occasional practice in Rome where the corpses of criminals were placed in mass graves or the Tiber.Footnote 52 He hedges, however, and cites the text from Ulpian (Dig. 48.24.1) given above: ‘However, notwithstanding differences due to local conditions and religious context (cf. Jesus’ burial on the day of his crucifixion before the beginning of Sabbath), the Augustan period appears to have been a watershed in the way corpses of executed people were treated by law'. The other two excerpts in the same title of the Digest ‘show that the matter was left to the emperor's discretion, and that imperial generosity and indulgence, however slow to come for those who had been deported or relegated, translated into custom in the Severan period and into law by 300’.Footnote 53 François Hinard and Jean Christian Dumont believe that the lex Puteoli and the text from Agennius Urbicus both show that at least for certain criminals the magistrate of the colony did not deprive the executed of the right of burial.Footnote 54 John Bodel discusses the discovery beyond the Esquiline gate in Rome of ‘some seventy-five mass burial pits, rectangular in shape, arranged in rows, lined with blocks of sperone or cappellaccio tufa’. He shows that they are to be distinguished from the potter's field in Horace's Sat. 1.8.8–16, ‘a pestilential region 1000 by 300 feet in area strewn with bones’.Footnote 55 The mass burial pits would have been open for several weeks before being filled to the capacity.Footnote 56 In about 40 bce the potter's field mentioned by Horace was covered over by Maecenas, and according to Bodel it ‘marked the end of the practice at Rome of burying the poor in mass graves and that subsequently cremation in public crematoria became the common fate of those without the means to ensure a private burial’.Footnote 57 The relevance of all this for practice in Roman Palestine is somewhat questionable. Open mass graves in Judaea do not seem probable, given Jewish attitudes toward burial. At this time there are no known mass graves in Judaea which show evidence of being open burial grounds, where animals would have left evidence of gnawed skeletal remains.Footnote 58
4. Denial of Burial: Birds of Prey, Wild Animals, Dogs and Corpses
NT scholars are well aware that birds of prey fed on the corpses of crucified individuals while they still hung in the open.Footnote 59 A slave in Plautus's Miles Gloriosus asserts that, scio crucem futuram mihi sepulcrum; / ibi meí sunt maiores siti, pater, avos, proavos, abavos (I know that the cross will be my future sepulchre: there my ancestors have been buried—my father, grandfathers, great grandfathers, and great great grandfathers).Footnote 60 An inscription from Amyzon in Caria (second century bce) describes, in elegiac meter, a master named Demetrius son of Pankrates who went to Hades because his slave had killed him in his sleep and then burned his house. The citizens of the community crucified the slave and left him for the beasts:
ἀλλὰ πολῖται ἐμοὶ τὸν ἐμὲ ῥέξαντα τοιαῦτα
θηρσὶ καὶ οἰωνοῖς ζωὸν ἀνεκρέμασαν.
but the one who did such things to me my fellow citizens
hung alive for the wild beasts and birds.Footnote 61
There is no indication the slave was buried, in a mass grave or anything else. The elder Seneca, in a rhetorical exercise concerning whether the bodies of homicides should be buried, writes:
naufragos idem fluctus, qui expulit, <sepelit;> suffixorum corpora <a> crucibus in sepulturam suam defluunt; eos, qui vivi uruntur, poena funerat.
Nature has given forms of burial for all: the wave which flings shipwrecked mariners into the sea also buried them; the bodies of those fastened to crosses decompose into their own burial; the punishment buries those who are burned alive.Footnote 62
Lucan tells the tale of a cannibalistic witch who bites off crucified flesh for her magic recipes:
laqueum nodosque nocentis
ore suo rupit, pendentia corpora carpsit
abrasitque cruces percussaque viscera nimbis
vulsit et incoctas admisso sole medullas.
insertum manibus chalybem nigramque per artus
stillantis tabi saniem virusque coactum
sustulit et nervo morsus retinente pependit.Footnote 63
She breaks with her teeth the fatal noose, and mangles the carcass that hangs on the gallows, and scrapes the cross of the criminal; she tears away the rain-beaten flesh and the bones calcined by exposure to the sun. She purloins the nails that pierced the hands, the clotted filth, and the black humor of corruption that oozes over all the limbs; and when a muscle resists her teeth, she hangs her weight upon it.
This text implies that corpses were sometimes abandoned on crosses. Plutarch has his own perspective. After mentioning the Cynics Diogenes and Crates, he asks:
ἀλλʼ εἰς σταυρὸν καθηλώσεις ἢ σκόλοπι πήξεις; καὶ τί Θεοδώρῳ μέλει, πότερον ὑπὲρ γῆς ἢ ὑπὸ γῆς σήπεται; Σκυθῶν εὐδαίμονες αὗται ταφαί· Ὑρκανῶν δὲ κύνες Βακτριανῶν δʼ ὄρνιθες νεκροὺς ἐσθίουσι κατὰ νόμους, ὅταν μακαρίου τέλους τυγχάνωσιν.
But will you nail him to a cross or impale him on a stake? And what does Theodorus care whether he rots above ground or beneath? Among the Scythians such is the manner of happy burial; and among the Hyrcanians dogs, among the Bactrians birds, devour, in accordance with the laws, the bodies of men, when these have met a happy end.Footnote 64
In Plutarch's version of the narrative of Theodorus, some crucified bodies rot away on the cross.Footnote 65
Valerius Maximus tells a version of the story of Polycrates of Samos:
Orontes Darii regis praefectus in excelsissimo Mycalensis montis uertice cruci adfixit, e qua putres eius artus et tabido cruore manantia membra atque illam laeuam…situ marcidam Samos…laetis oculis aspexit.Footnote 66
Orontes the prefect of king Darius fixed him to a cross on the highest peak of mount Mycale. There Samos, with rejoicing eyes, observed his decaying limbs and members dripping with putrefying blood and his decayed left hand…
In Apuleius's narrative, one of the thieves contemplates an imaginative execution for the young woman: patibuli cruciatum, cum canes et uultures intima protrahent uiscera (crucified on a patibulum, where the dogs and vultures will drag out her inner viscera).Footnote 67 In that text, apparently the thief envisions a crucifixion low to the ground, so that dogs could do their work. A mishnaic text, in a discussion of when a widow may remarry, mentions an individual who bleeds, is crucified, and eaten by wild animals—apparently all at the same time.Footnote 68Semaḥot, possibly a third-century text, ordains rules for a family which has lost a member to crucifixion:
לא— אביו ואמו צלובין עמו ,אשׁתו צלובה עמו בעיר ,מי שׁהיה בעלה צלוב עמה בעיר
אבל ,לא ישׁרה בצד זה .ישׁרה באותה העיר אלא אם כן היתה עיר גדולה כאנטוכיא
.ואינ הצורה ניכרת בעצמות ,עד שׁיכלה הבשׂר ?עד מתי הוא אסור .ישׁרה בצד אחר
[A wife] whose husband was crucified in her city, [a man] whose wife is crucified in his city, [a person] whose father and his mother are crucified [in] his [city]—[such a person] should not dwell in that city, unless a city as large as Antioch. He [whose family member was crucified] should not dwell within this border; rather, [such a] mourner should dwell within another border. Until when is this forbidden? Until the flesh was consumed, and there is not the form [of the person] remembered in the bones.Footnote 69
Clearly this text pictures loved ones whose corpses decay on the crosses themselves, and not in shallow graves or any kind of grave.
Although not a text specifically mentioning crucifixion, the next example is useful for understanding the situation. A late astrological text describes an unfortunate astrologer who predicted the death of Domitian on the very day of the prediction. The astrologer said he himself would be torn apart by dogs, when challenged to provide a prediction applicable to his own life. Domitian, condemned him to be ‘bound to a stake and burned’ (ἐκέλευσε σταυρῷ προσδεθέντα καυθῆναι) to give the lie to his prediction. The dogs tore the hapless astrologer apart when water quenched the flames.Footnote 70
Crossan uses some of these texts to argue that dogs were the normal fate for crucified bodies.Footnote 71 But his argument assumes a shallow grave for Jesus, something I have already shown cannot be established from the Gospel of Peter. What I think these texts indicate is that some crucified bodies were simply abandoned on the cross. None of them mention a ‘shallow grave’. What they do show is that in Roman (and presumably Greek) practice the bodies of some crucified individuals were left to decompose on the cross. The picture is horrifying, but undoubtedly the necrotic flesh rotted away, and what was not eaten by birds of prey fell to the ground and was occasionally consumed by dogs. Some of these texts may imply that some crosses were not high.Footnote 72 Aubert argues that one generally would not want to see hanging crucified corpses, ‘except for the sake of example’.Footnote 73
5. Burial of the Crucified
Several texts from Greco-Roman literature confirm the possible burial of crucified individuals by their families. Petronius tells a story (a fiction within a fiction) in which a soldier was guarding bodies of crucified brigands (latrones). The parents of one of the brigands take down their son's corpse and bury him while the soldier is away seducing a Roman matron whose husband had died. The soldier then nails the husband's body to the cross instead.Footnote 74 This story clearly belongs in section four, but it does indicate (if one can appeal to popular fiction) the concern of families of the crucified who wanted to bury their loved ones. It may imply that permission for burial had to be sought from the magistrate.
Ps. Quintilian, in the Major Declamations, describes a trial based on the law that those who desert their parents should remain unburied. A son leaves his blind mother to ransom his father from pirates and gives himself in substitute for his father to the pirates. Later the pirates throw his corpse into the ocean, and it floats back home. The father wants to bury his son, but the mother does not. In the fictional trial (a rhetorical exercise), the father argues: cruces succiduntur, percussos sepeliri carnifex non vetat, ipsi piratae nihil amplius quam proiciunt (crosses are cut down, the executioner does not prevent those executed from being buried, the pirates did no more than cast the body into the sea).Footnote 75 Even if the executioner normally left the bodies on the cross, they could be buried if concerned individuals so requested.
There was a topos in antiquity of bad governors who exhibited special cruelty in trials and executions.Footnote 76 Consequently, one cannot view the behavior of a governor such as Verres as indicative of legal norms.Footnote 77 Verres did not prevent parents from burying their executed children—provided they bought the right to do so:
agunt eum praecipitem poenae civium Romanorum, quos partim securi percussit, partim in vinculis necavit, partim implorantes iura libertatis et civitatis in crucem sustulit. rapiunt [eum] ad supplicium di patrii, quod iste inventus est qui et e conplexu parentum abreptos filios ad necem duceret, et parentis pretium pro sepultura liberum posceret.
He is being swept into madness by those executions of Roman citizens, whom he either beheaded, or imprisoned till they died, or, while they appealed in vain for their rights as free men and Romans, crucified. The gods of our fathers are haling him off to punishment, because he was found capable of tearing sons from their fathers' arms to be dragged to execution, and of making parents buy of him the right to bury their children.Footnote 78
Verres might normally have left bodies to rot on crosses, but he was open to payment. The text indicates that the friends or kin of the crucified individuals had to ask permission to bury the victims, as did Joseph of Arimathaea in the gospel accounts. Cicero also asks the people of Messana why they have not torn down the cross, located next to their port and city, and thrown it into the sea, the cross that still drips with the blood of Gavius, a Roman citizen, before they came to Rome (nec prius illam crucem quae etiamnunc civis Romani sanguine redundat, quae fixa est ad portum urbemque vestram, revellistis neque in profundum abiecistis locumque illum omnem expiastis quam Romam atque in horum conventum adiretis?).Footnote 79 The empty cross is a sign that Verres permitted Gavius's burial.
Philo, in his account of Flaccus's atrocities against the Jewish community during the fall of 38 ce, writes that in earlier times some Jews were taken from crosses and buried during celebrations, such as birthdays of the Augustan emperors:
ἤδη τινὰς οἶδα τῶν ἀνεσκολοπισμένων μελλούσης ἐνίστασθαι τοιαύτης ἐκεχειρίας καθαιρεθέντας καὶ τοῖς συγγενέσιν ἐπὶ τῷ ταφῆς ἀξιωθῆναι καὶ τυχεῖν τῶν νενομισμένων ἀποδοθέντας·
I have known cases when on the eve of a holiday of this kind, people who have been crucified have been taken down and their bodies delivered to their kinsfolk, because it was thought well to give them burial and allow them ordinary rites.Footnote 80
In the next passage Philo writes that Flaccus refused to order that those who had died be taken down from the cross, even though it was a holiday like the birth of the emperor.Footnote 81 Philo's texts show that families, at least during holidays and during the rule of some Roman prefects, could recover crucified bodies. There is a parallel between the families' obtaining permission to recover the corpses of the victims during holidays and Joseph of Arimathaea's similar action on the eve of the Passover.Footnote 82
In the midst of the Jewish war, Josephus depicts the ‘impious’ behavior of the Idumaeans who do not bury the corpses of those whom they have killed in Jerusalem:
προῆλθον δὲ εἰς τοσοῦτον ἀσεβείας ὥστε καὶ ἀτάφους ῥῖψαι, καίτοι τοσαύτην Ἰουδαίων περὶ τὰς ταφὰς πρόνοιαν ποιουμένων, ὥστε καὶ τοὺς ἐκ καταδίκης ἀνεσταυρωμένους πρὸ δύντος ἡλίου καθελεῖν τε καὶ θάπτειν.
They came to this point of impiety that they cast out the bodies unburied, even though the Jews show such care for burials that before sundown they take down [the bodies of] those sentenced to crucifixion and bury them.Footnote 83
Presumably Josephus has Roman crucifixions in mind.Footnote 84 The important point is that some of these citizens were crucified, and that their families were still allowed to bury them.
In Semaḥot there is a statement that families should not try to steal bodies of those executed by the Romans:
משׁעת שׁנתיאשׁו ?מאימתי מתחילין להן למנות .אין מונעין מהן לכל דבר ,הרוגי מלכות
—ולא כשׁופך דמימ בלבד ,הרי זה שׁופך דמים ,כל הגונב .אבל לא מלגנוב ,מלשׁאול
.ומכלל שׁבתות ,ומגלה עריות ,אלא כעובד עבודה זרה
[Concerning] those executed by a government—there shall not be a withholding from them of any matter [i.e., of any funeral rite]. When do they begin to count their death? From the time they give up hope from asking [for the corpse],Footnote 85 but not from stealing [the corpse]. Everyone who steals [the corpse], such a person is [like] one who sheds blood—and not only like one who sheds blood, but also as like one who serves foreign idols, and one who uncovers nakedness, and one who profanes Sabbaths.Footnote 86
In David Chapman's reasonable interpretation, this concerns the theft of bodies from crosses, but it may be a more general prohibition of theft of bodies from any Roman mechanism of execution. The interpretation in the brackets also seems reasonable, as Chapman notes, given the context.Footnote 87 The text indicates that families could sometimes recover the bodies of the executed.
6. Conclusions
The conclusions to be drawn from this material are clear and firmly based on evidence. First, the provincial officials, including prefects like Pilate, had a choice when faced with the disposal of the corpses of those condemned to crucifixion. In Palestine, where the evidence shows that Romans crucified Jews in the first century for political disturbances, prefects and procurators were able to do as they pleased. They could classify the disturbances as seditio, or troublemaking (se turbulente gessere), or simply actions against the quies (quiet) of Judaea. The burial of Jehoḥanan is proof that they could allow burial for one who was almost certainly a crucified brigand, if Josephus is correct in his picture of the first-century crucifixions. Many bodies in the Roman world were left to rot on crosses, with no burial. Animals probably consumed those cadavers as they gradually decayed. There seem to be no texts from the ancient world that explicitly state that corpses of the crucified were buried in shallow graves. Some texts, such as the lex Puteoli, indicate that bodies were taken to places ‘where there were many cadavers’, but there is no statement that the undertaker's workers buried them carelessly. One cannot rule out the possibility that some crucified corpses were placed in open pits (puticuli), but Roman texts do not mention it. There are a number of texts that do prove the bodies of the crucified were occasionally buried by people simply concerned to bury the dead or by their family. Those texts show that the narrative of Joseph of Arimathaea's burial of Jesus would be perfectly comprehensible to a Greco-Roman reader of the gospels and historically credible.Footnote 88
