Perhaps the key to reconciling early Lutheranism's seemingly conflicting statements about the judicial law is to understand it as holding to a two-fold division of the judicial law, which identifies some judicial laws as not being based on the moral law, and other judicial laws as being based on the moral law. The former category was just for the state of Israel, while the latter category is for all men at all times.
In this understanding of the judicial law, all Mosaic civil laws prohibiting violations of the moral law are themselves part of the moral law. Note, for example, in the quotes below the reason given by Martin Luther for the capital punishment for rape, and the reason given in a joint statement by Phillip Melanchthon, Johannes Brenz, and others for the capital punishment for blasphemy.
For proof of early Lutheranism's advocacy of biblical civil government, we include a large sampling of quotes below. These quotes are from Martin Luther; his successor, Phillip Melanchthon; and other early influential Lutherans, including Johannes Bugenhagen, Johannes Brenz, and Caspar Cruciger, Sr.
|"God's honor and Commandment|
we must protect, and injury or
injustice to our neigbhor we must
prevent, the magistates with the
sword ..." -- Martin Luther
Rulers are keepers of both tables of the law:
“[I]t is not filling that the magistrates should be idle and allow sin to have sway, and that we say nothing. ... God’s honor and Commandment we must protect, and injury or injustice to our neighbour we must prevent, the magistrates with the sword, the rest of us with reproof and rebuke, yet always with pity for those who have merited the punishment.
Witchcraft merits death for being high treason against God:
I should have no compassion on these witches; I would burn all of them. We read in the old law, that the priests threw the first stone at such malefactors, ‘Tis said this stolen butter turns rancid, and falls to the ground when any one goes to eat it. He who attempts to counteract and chastise these witches, is himself corporally plagued and tormented by their master, the devil. Sundry schoolmasters and ministers have often experienced this. Our ordinary sins offend and anger God. What, then, must be his wrath against witchcraft, which we may justly designate high treason against divine majesty, a revolt against the infinite power of God. The jurisconsults who have learnedly and pertinently treated of rebellion affirm that the subject who rebels against his sovereign, is worthy of death. Does not witchcraft, then, merit death, which is a revolt of the creature against the Creator, a denial to God of the authority it accords to the demon?
Regarding Luther's opposition to witchcraft, one author makes this interesting observation regarding the execution of some convicted of this sinduring Luther's day:
As early as 1540, at a time when elsewhere in Germany the execution of witches was of rare occurrence, four persons were burnt at Wittenberg on June 29 as witches or wizards. Shortly before this Luther had lamented that the plague of witches was again on the increase.
Rulers are to advance God's Word and its preachers, while teachers of doctrines contrary to fundamental articles of faith should be punished as blasphemers:
Since the gods, or rulers, beside their other virtues, are to advance God’s Word and its preachers, are they also to put down opposing doctrines, or heresies, since no one can be forced to believe? The answer to this question is as follows:
First. Some heretics are seditious, and teach openly that no rulers are to be tolerated; that no Christian may occupy a position of rulership, that no one ought to have property of his own, but run away from wife and child and leave house and home, or that all property shall be held in common. These teachers are immediately, and without doubt, to be punished by the rulers, as men who are resisting temporal law and government ( Romans 13:1). They are not heretics only, but rebels, who are attacking the rulers and their government, just as a thief attacks another’s goods, a murderer another’s body, an adulterer another’s wife; and this is not to be tolerated.
If some were to teach doctrines contradicting an article of faith, clearly grounded in Scripture and believed throughout the world by the whole Church, such as the articles that we teach children in the Creed, — as, for example, if anyone would teach that Christ is not God, but a mere man, and like other prophets, as the Turks and the Anabaptists hold, — such teachers should not be tolerated, but punished as blasphemers. For they are not mere heretics, but open blasphemers, and rulers are in duty bound to punish blasphemers, as they do those who curse, swear, revile, abuse, defame and slander. Such teachers, with their blasphemy, are defaming the name of God, and robbing their neighbor of his honor in the eyes of the world. In like manner, the rulers should also punish, — or certainly not tolerate, — those who teach that Christ did not die for our sins, but that everyone shall make his own satisfaction for them; for that, too, is blasphemy against the Gospel and against the article that we all pray in the Creed, “I believe in the forgiveness of sins,” and “In Jesus Christ dead, risen, etc.” They should be treated in the same way who teach that the resurrection of the dead and the life everlasting are nothing, and that there is no hell, and the like things; as did the Sadducees and the Epicureans, of whom there are now coming to be many among the great wiseacres.
By this procedure no one is compelled to believe, for he can still believe what he will; but he is forbidden to teach and blaspheme. For, by so doing, he would take from God and the Christians their doctrine and word, and he would do them this injury under their own protection and by means of the things that all have in common. Let him go to some place where there are no Christians; for as I have often said, he who makes a living from the burghers ought to keep the law of the burgh, and not defame and revile it, or else he ought to get out. We are told that the holy fathers in the Council of Nicaea, when they heard the doctrine of the Arians read, all hissed unanimously, and would not listen or permit any argument or defense, but condemned them out of hand, without any disputation, as blasphemers. Moses, in his Law, commands that such blasphemers and, indeed, all false teachers, are to be stoned. ...
Perhaps someone may make me another clever answer and say that, with this kind of teaching, I am strengthening the case of the tyrants who persecute the Gospel, and opening door and window for them. Since they consider our Gospel heresy and blasphemy, they will now preen themselves sure enough, and pretend that conscience and duty compel them to punish us as blasphemers. Answer: What do I care? If we were to hold back necessary instruction because of the tyrants, we would long since have had to give up the Gospel altogether. If they do right, they will find it out, and I leave them to worry about it. When they knowingly use their power over worldly things, in the most self-willed manner, for the injury of others, what wonder that they do us wrong? Like blind men, they cannot see our doctrine, and like madmen, they cannot hear it. It was thus that the kings of
Israelkilled the true prophets. Nevertheless, we must not abolish or hide the commandment to stone false prophets; but pious rulers will punish no man without first seeing, hearing, learning, and becoming certain that he is a blasphemer. But enough of this! Let us return to the Psalm: But they know nothing and consider nothing, they go in darkness; All the foundations of the land shall fall.
On Deuteronomy 13, which teaches the death penalty for false prophets, Martin Luther said,
"It is better to make away with a man than with God."
Incorrigible children deserve the death penalty:
Discussing Deuteronomy 21:18f:
Fourthly (vv. 18ff.), the law concerning disobedient sons who are to be put to death.A most excellent and just lawgiver is Moses, who judges not only lesser crimes worthy of death but especially the greater ones. Among men laws and customs are such that murder and theft are punishable by death, but adultery usually is not. Furthermore, the disobedience and wickedness of children are not punishable by death, much less sacrilege, godlessness, and blasphemies toward God and God's Word. But here Moses is so strict in his commands about punishment for the rebelliousness of children that he even orders the parents to be the first agents of this death; for they themselves should bring their own children to judgment, arraign them, and testify against them. So important does God make obedience and reverence toward parents. Would that we, too, observed this law, so that more fear and shame might be driven into our unbridled and bold youth, which is being led to ruin by evil companions and corrupt morals!
Murderers deserve the death penalty:
On Genesis 9:6:
God had given mankind, that is the authorities, a share in his authority over life and death. When the authorities, following the godly demand stated in Genesis 9:6, execute a man, then in reality it is God himself, who through human hand kills the murderer.
Hence this text is very important, and we should learn from it that God has given the sword to civil government to protect us against wickedness and keep sin under control. This then is a powerful proof of God’s love towards us, for He promises us not only to keep us from another Flood but also to give us meat to eat and to preserve our life.
Rapists deserve the death penalty:
On the rape of Dinah in Genesis 34:
“I think that rape was forbidden and a capital offence not only in Jacob’s house, but also in that whole area.... The rape of a virgin is a capital crime of itself – by all law, divine and civil.... In all ages, this crime has been punished in a fearful manner.”
Joint document of Martin Luther, Phillip Melanchthon, Johannes Bugenhagen, and Caspar Cruciger Sr. 
Blasphemy, false teachings, heretical acts, and improper worship services must be suppressed:
Just as the civil magistracy is obligated to restrain and punish public blasphemy and perjury, it is also obligated to restrain and punish individuals in its own judicial district, for public false teachings, improper worship services and heretical acts. And this God orders in the second commandment, where he says, “Whoever dishonors God’s name, shall not remain unpunished” [editor's note: it is really the third commandment, paraphrased]. Everyone is obligated, in keeping with his station and office, to avoid and to deter blasphemy. And on the strength of this commandment, princes and magistrates have the power and duty to abolish improper worship services, and in their place, to establish true teaching and correct worship services. This commandment also instructs them to deter public false teaching, and to punish the obstinate. Leviticus 24[:16] speaks to this: “Whoever blasphemes God is to be killed.”
[I]f we hold God’s honor in high respect, we must in all seriousness take preventive measures, so that blasphemy and damaging errors are not carried far and wide.
|Melanchthon approved of the|
execution of the vile blasphemer
Servetus, and said, "I wonder
at those who disapprove of
Second, before punishment is meted out, misled people are first of all to be presented with clear Christian instruction and admonition that they might be induced to renounce their errors. If they desire so to do, it is Christian to show them mercy. If they, however, remain obstinate and do not want to renounce their errors, then punishment is obligatory.
In every case, however, moderation must prevail, so that the people first of all are instructed, and admonished to renounce their errors. Likewise, the judge shall also differentiate [among the different classes of Anabaptists]. Some have been misled solely out of simplemindedness and are not obstinate. With these, one should not proceed in haste. Also, these people may be given a lesser punishment, such as expulsion from the land, or imprisonment, so that they do others no harm. Some are beginners* and at the same time obstinate. Here the judge shall demonstrate severity.
*"The German 'anfenger' here has more the sense of 'instigator' or 'agitator.' (Theodor Dieter)"
If someone were to contradict this, saying, “The magistracy is not able to give anyone faith, therefore it dare not punish anyone for the sake of faith,” to this there are many proper answers. But we shall limit ourselves to this one answer: The magistracy does not punish on account of opinions and views as held in the heart, but on account of outward wrongful speech and teachings, through which others are also led astray.
The magistrates must give themselves to constant and correct instruction, so that they are sure of their cause and do not treat anyone unjustly. For it is not right, solely according to custom, to judge against God’s word and against the old and pure church’s understanding and teaching. Custom is a great tyrant. Therefore one must ground himself upon God’s word and the old, pure church. For one is to accept no teaching which has not been attested to by the old, pure church, since it is easy to understand that the old church must have possessed all the articles of faith, namely, all those needed for salvation. Consequently the ruler is obligated to give himself to a thorough study of God’s word and the old church’s teachings.
Some people argue that the civil magistracy in no way ought to be concerned with spiritual matters. This argument is stretched too far. True, both offices—the office of preaching, and that of the civil government—are distinct from one another. At the same time they both are to serve unto God’s glory. Princes are not only to protect their subjects, along with their possessions and physical lives, but the most important task of their office is to further God’s honor, and to oppose blasphemy and idolatry. Thus also did the kings in the Old Testament—and not only the Jewish kings, but also the converted kings of the Gentiles—who executed those who established false prophets and idolatry. Such examples belong to the office of the prince, as Paul also teaches, “The law is good for punishing the blasphemers,” etc. [editor's note: this may be an inference from 1 Timothy 1:8-11] The civil magistracy does not exist solely to serve people in the area of physical welfare, but most of all for God’s honor, for it is a servant of God, whom it, through its office, is to acknowledge and glorify. Ps 2[:10]: Et nunc Reges intelligite (Now therefore, O kings, be wise).
Concerning the words about the weeds, “Let both grow,” used to counter [the above argument], here it is not the civil magistracy that is spoken of, but the office of preacher—that the preachers, upon the authority of their office, are not to exercise temporal power. From all this it has now become clear that the civil magistracy is obligated to deter blasphemy, false teachings and heresy, punishing the adherents physically.
And in order to instruct and confirm our inner conscience, the following is especially to be noted: We should at all times take note of a few, clear articles wherein the sect is in gross and obvious error. Through this we should know that the obstinate are blinded by the devil. And this is certain, that they possess no good spirit, even though they have a great appearance of the same. For one well knows that false prophets have sheep’s clothing—that is, a certain good appearance. But by their fruits we shall know them. Now the most certain testing of these fruits is, namely, that one attempts obstinately to defend false articles against the clear and obvious word of God—with this the judge can instruct and strengthen his conscience. For thus he knows that the sect is from the devil. Therefore he knows that the sect must be opposed, even though there may be needy and ailing individuals among them, in need of mercy; he still knows that they must be opposed as a group.
|For Johannes Brenz, the civil|
law in Leviticus against
blasphemers did not only
bind Israel, but all nations.
Civil rulers should punish public blasphemers by death
God has clearly and explicitly ordered the civil authority to punish by death the public blasphemers within its territory (Lev. xxiv.16). This law did not only bind Israel; it is a natural law which binds all authorities, kings, princes, judges etc.
Advocates Mosaic law against idolatry, blasphemy, and spreading heresy
[Melanchthon] thought that the Mosaic law against idolatry and blasphemy was as binding upon Christian states as the Decalogue, and was applicable to heresies as well.
Supports the execution of Servetus, a blasphemer and promoter of heresy
[Melanchthon] fully and repeatedly justified the course of Calvin and the Council of Geneva, and even held them up as models for imitation! In a letter to Calvin, dated Oct. 14, 1554, nearly one year after the burning of Servetus, he wrote:
"Reverend and dear Brother: I have read your book, in which you have clearly refuted the horrid blasphemies of Servetus; and I give thanks to the Son of God, who was ... [the awarder of your crown of victory] in this your combat. To you also the Church owes gratitude at the present moment, and will owe it to the latest posterity. I perfectly assent to your opinion. I affirm also that your magistrates did right in punishing, after a regular trial, this blasphemous man."
A year later, Melanchthon wrote to Bullinger, Aug. 20, 1555: —
"Reverend and dear Brother: I have read your answer to the blasphemies of Servetus, and I approve of your piety and opinions. I judge also that the Genevese Senate did perfectly right, to put an end to this obstinate man, who could never cease blaspheming. And I wonder at those who disapprove of this severity."
Three years later, April 10, 1557, Melanchthon incidentally (in the admonition in the case of Theobald Thamer, who had returned to the Roman Church) adverted again to the execution of Servetus, and called it "a pious and memorable example to all posterity."
 Cited in Henry Burgess, ed., The Journal of Sacred Literature and Biblical Record: Volume V (London: Alexander Heylin, Paternoster Row, 1857), 31.
 Martin Luther, "Works of Martin Luther: The Eighty-Second Psalm: Translated and Explained," GodRules.net. Retrieved May 9, 2013, from http://www.godrules.net/library/luther/NEW1luther_d21.htm
 Mathesius, "Tischreden," 274. Cited in John Osborne, Luther , trans. Pol Quentin (Taylor & Francis, 1965), 409.
 "Lectures on Deuteronomy," in Jaroslav Pelikan, ed., Works of Martin Luther: Volume 9 (Concordia, 1960), 211-212. Cited in Martin A. Foulner, Theonomy and the Westminster Confession: An Annotated Sourcebook (Edinburgh: Marpet Press, 1997), 49.
 Cited in Tyge Krogh, A Lutheran Plague: Murdering to Die in the Eighteenth Century (Netherlands: Koninklijke Brill NV, 2012), 100.
 Martin Luther, Commentary on Genesis, 2 vols., trans. Theodore Mueller (Grand Rapids: Zondervan Publishing House, 1958), 1:167. Cited in William O. Einwechter, "Murder and the Death Penalty," Darash Press. Retrieved May 13, 2013 from http://darashpress.com/articles/murder-and-death-penalty#fntext_12
 "Appendix A: That the Civil Magistracy Is Obligated to Apply Physical Punishment Against the Anabaptists: A Few Considerations from
 Ibid., 111.
 Ibid., 115, 116.
 Ibid., 116n.
 Ibid., 112.
 Ibid., 116.
 P. D. L. Avis, "Moses and the Magistrate: A Study in the Rise of Protestant Legalism," Journal of Ecclesiastical History, vol. 26, no. 2 (April 1975): 10. Retrieved May 14, 2013 from http://www.contra-mundum.org/essays/theonomy/Avis.pdf
 Philip Schaff and David Schley Schaff, History of the Christian Church: Volume 7: Modern Christianity, the Swiss Reformation (New York, Charles Scribner's Sons, 1907), 706.
 Ibid., 706-708.