To bury him on the same day, and so [too] all the dead: To bury the one that was hung on that [same] day, as it is stated (Deuteronomy 21:23), “rather you shall surely bury him on that day, etc.” And the language of Sifrei here is “‘Rather you shall surely bury him on that day’ is a positive commandment.”
From the roots of the commandment is that which they, may their memory be blessed, mentioned in the Mishnah in the chapter [entitled] Nigmar HaDin (Sanhedrin 46b). As there they said that one who is hung is a curse to God, meaning to say that the creatures should not say, “Why was he hung? Because he cursed the Name [of God].” And it will come out in their mentioning of this and their bringing the thing up in their mouths, that they will be profaning the Name of the Heavens and causing evil to themselves. And the God Who desires the good of His creatures prevented them from this because of that.
From the laws of this commandment is that which they, may their memory be blessed, said (Sanhedrin 46a) that this commandment is not only with one who is hung, but rather even with all those killed by the court — it is a commandment to bury them on the day of their killing. Also included in this commandment is to bury all Jewish dead on the day of their death. And because of this, they, may their memory be blessed, called a dead body that has no one to be involved in his burial, “a dead body of the commandment (met mitsvah),” which is to say that it is a commandment upon all to bury him due to this command. And they, may their memory be blessed, said in the Mishnah mentioned (Sanhedrin 46a) that two gravesites were set up for the courts, one for those stoned and burnt — whose punishment is more severe — and one for those who are killed (decapitated) and asphyxiated — whose punishment is more lenient. And after the flesh has decomposed, we collect the bones of the one convicted to be there and bury them in their fathers’ gravesites. And more details are in the mentioned chapter. (See Tur, Yoreh Deah 382.)
This commandment is practiced, concerning those killed by the court during the time when capital punishment is practiced; and concerning other Jewish dead in every place and at all times by males and by females, such that it is a commandment to bury them on the day of death. And one who transgresses this, and leaves a dead body overnight not for his (the dead person’s) honor, violates this positive commandment, besides violating a negative commandment, as we wrote in this Order (Sefer HaChinukh 536) with God’s help.
לְקָבְרוֹ בּוֹ בַּיּוֹם וְכֵן כָּל הַמֵּתִים – לִקְבֹּר מִי שֶׁנִּתְלָה בַּיּוֹם הַהוּא, שֶׁנֶּאֱמַר (דברים כא כג) כִּי קָבוֹר תִּקְבְּרֶנּוּ בַּיּוֹם הַהוּא וְגוֹ'. וּלְשׁוֹן סִפְרֵי (כאן) כִּי קָבוֹר תִּקְבְּרֶנּוּ בַּיּוֹם הַהוּא, מִצְוַת עֲשֵׂה.
To bury him on the same day, and so [too] all the dead: To bury the one that was hung on that [same] day, as it is stated (Deuteronomy 21:23), “rather you shall surely bury him on that day, etc.” And the language of Sifrei here is “‘Rather you shall surely bury him on that day’ is a positive commandment.”
מִשָּׁרְשֵׁי הַמִּצְוָה. מָה שֶׁהִזְכִּירוּ זִכְרוֹנָם לִבְרָכָה בַּמִּשְׁנָה בְּפֶרֶק נִגְמַר הַדִּין (סנהדרין מו, ב) שֶׁאָמְרוּ שָׁם כִּי קִלְלַת אֱלֹהִים תָּלוּי, כְּלוֹמַר, שֶׁלֹּא יֹאמְרוּ הַבְּרִיּוֹת מִפְּנֵי מָה זֶה תָּלוּי? מִפְּנֵי שֶׁקִּלֵּל אֶת הַשֵּׁם, וְנִמְצָא בְּהַזְכִּירָם זֶה וּבְהַעֲלוֹתָם הַדָּבָר בְּפִיהֶם שֶׁהֵם מְחַלְּלִים שֵׁם שָׁמַיִם וְגוֹמְלִים רַע לְנַפְשָׁם, וְהָאֵל שֶׁחָפֵץ בְּטוֹבַת בְּרִיּוֹתָיו מְנָעָם מִזֶּה מִפְּנֵי כָּךְ.
From the roots of the commandment is that which they, may their memory be blessed, mentioned in the Mishnah in the chapter [entitled] Nigmar HaDin (Sanhedrin 46b). As there they said that one who is hung is a curse to God, meaning to say that the creatures should not say, “Why was he hung? Because he cursed the Name [of God].” And it will come out in their mentioning of this and their bringing the thing up in their mouths, that they will be profaning the Name of the Heavens and causing evil to themselves. And the God Who desires the good of His creatures prevented them from this because of that.
מִדִּינֵי הַמִּצְוָה. מָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (סנהדרין שם, א) שֶׁאֵין מִצְוָה זוֹ בַּנִּתְלֶה לְבַד, אֶלָּא אַף כָּל הֲרוּגֵי בֵּית דִּין מִצְוָה לְקָבְרָם בְּיוֹם הֲרִיגָתָם. גַּם בִּכְלַל הַמִּצְוָה לִקְבֹּר כָּל מֵת מִיִּשְׂרָאֵל בְּיוֹם מוֹתוֹ, וּמִפְּנֵי כֵן יִקְרְאוּ זִכְרוֹנָם לִבְרָכָה הַמֵּת שֶׁאֵין לוֹ מִי שֶׁיִּתְעַסֵּק בִּקְבוּרָתוֹ מֵת מִצְוָה, כְּלוֹמַר שֶׁמִּצְוָה עַל הַכֹּל לְקָבְרוֹ מִצַּד הַצִּוּוּי הַזֶּה. וְאָמְרוּ זִכְרוֹנָם לִבְרָכָה בַּמִּשְׁנָה הַנִּזְכֶּרֶת (שם) שֶׁשְּׁנֵי קְבָרוֹת הָיוּ נִתְקָנִין לְבֵית דִּין, אֶחָד לַנִּסְקָלִין וְלַנִּשְׂרָפִין, שֶׁדִּינָם חָמוּר, וְאֶחָד לַנֶּהֱרָגִים וְלַנֶּחְנָקִים, שֶׁדִּינָם קַל, וְאַחַר שֶׁנִּתְעַכֵּל בְּשַׂר הַנִּדּוֹן לְשָׁם מְלַקְּטִין אֶת הָעֲצָמוֹת וְקוֹבְרִין אוֹתָן בְּקִבְרוֹת אֲבוֹתֵיהֶן. וְיֶתֶר פְּרָטֶיהָ בַּפֶּרֶק הַנִּזְכָּר [יו"ד סי' שפ"ב].
From the laws of this commandment is that which they, may their memory be blessed, said (Sanhedrin 46a) that this commandment is not only with one who is hung, but rather even with all those killed by the court — it is a commandment to bury them on the day of their killing. Also included in this commandment is to bury all Jewish dead on the day of their death. And because of this, they, may their memory be blessed, called a dead body that has no one to be involved in his burial, “a dead body of the commandment (met mitsvah),” which is to say that it is a commandment upon all to bury him due to this command. And they, may their memory be blessed, said in the Mishnah mentioned (Sanhedrin 46a) that two gravesites were set up for the courts, one for those stoned and burnt — whose punishment is more severe — and one for those who are killed (decapitated) and asphyxiated — whose punishment is more lenient. And after the flesh has decomposed, we collect the bones of the one convicted to be there and bury them in their fathers’ gravesites. And more details are in the mentioned chapter. (See Tur, Yoreh Deah 382.)
וְנוֹהֶגֶת מִצְוָה זוֹ לְעִנְיַן הֲרוּגֵי בֵּית דִּין בִּזְמַן שֶׁנּוֹהֵג דִּינֵי נְפָשׁוֹת, וּלְעִנְיַן שְׁאָר מֵתֵי יִשְׂרָאֵל בְּכָל מָקוֹם וּבְכָל זְמַן בִּזְכָרִים וּנְקֵבוֹת, שֶׁמִּצְוָה לְקָבְרָם בְּיוֹם מִיתָה. וְהָעוֹבֵר עַל זֶה וְהֵלִין אֶת הַמֵּת שֶׁלֹּא לִכְבוֹדוֹ בִּטֵּל עֲשֵׂה זֶה, מִלְּבַד שֶׁעָבַר עַל לָאו, כְּמוֹ שֶׁנִּכְתֹּב בְּסֵדֶר זֶה בְּעֶזְרַת הַשֵּׁם (מצוה תקלו).
This commandment is practiced, concerning those killed by the court during the time when capital punishment is practiced; and concerning other Jewish dead in every place and at all times by males and by females, such that it is a commandment to bury them on the day of death. And one who transgresses this, and leaves a dead body overnight not for his (the dead person’s) honor, violates this positive commandment, besides violating a negative commandment, as we wrote in this Order (Sefer HaChinukh 536) with God’s help.