Did WV get the short end of the stick?

As usual Lincoln made his thoughts on this matter. Which he wrote down during the events, but was not discovered until after his death and the ending of the War, but it does give insight into the reason's he, as chdief executive of the government of the United States considered the procedures followed in accepting West Virginia as a State as not ionly constitutional but also needful.
I quote here, only his reasoning concerning the effect of the voting by qualified citizens for statehood for West Va. But as one would think, he goes into detail for those who are interested.


"The consent of the Legislature of Virginia is constitutionally necessary to the bill for the admission of West-Virginia becoming a law. A body claims to be such Legislature has given its consent. We cannot well deny that it is such, unless we do so upon the outside knowledge that the body was chosen at elections, in which a majority of the qualified vogters of Virginia did not participate. But it is a universal practice in the popular elections in all these states, to give no legal consideration whatever to those who do not choose to vote, as against the effect of the voters who do choose to vote."

Lawyers.

One of the reasons for WV's existence was that of military expedience". When you look at a map the newly formed state was to provide a buffer for Washington, DC. It was much like the Union's need to keep Maryland as a buffer zone. Having the national capital surrounded by "enemy" territory is not a good move. The Union supported Pierpont's Wheeling Convention for this reason and for Pierpont's support of Lincoln.

Many of the southern counties were chosen for the newly forming states to provide a buffer zone between the Union leaning counties and the counties remaining in Virginia. Kind of a no-mans land in reality. Support for separation from Virginia was weak in these counties, but made good military sense.

A good question about WV is was it Constitutional to form the state?

Attorney General's Office
December 27, 1862
The President having before him for his approval a bill passed by both Houses of Congress, entitled an "Act for the admission of the State of West Virginia into the Union, and for other purposes," has submitted to all the members of the Cabinet, separately, the following questions, for their opinion and advice thereon.
1. Is the said act constitutional?
2. Is the said act expedient?
I am of opinion that the bill is not warranted by the Constitution. And, in examining this proposition, I think it will be the more clearly apprehended, if viewed in two aspects: - 1. In the letter of the particular provision, and 2. In the spirit, as gathered from the letter, from the whole context, and from the known object, and
First, the letter - Art. 4, S. 3. "New States may be admitted by the Congress into this Union; but no State shall be formed or erected, within the jurisdiction of any other state, nor any state be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress." I observe, in the first place, that the Congress can admit new States into this Union, but cannot form States: Congress has no creative power, in that respect; and cannot admit into this Union, any territory, district or other political entity, less than a State. And such State must exist, as a separate independent body politic, before it can be admitted, under that clause of the Constitution - and there is no other clause. The new State which Congress may admit, by virtue of that clause, does not owe its existence to the fact of admission, and does not begin to exist, coeval with that fact. For, if that be so, then Congress makes the State; for no power but Congress can admit a State into the Union, And that result, (i.e. the making of the State by Congress) would falsify the universal and fundamental principle of this country, that a free American State can be made only by the people, its component members. Congress has no power to make a State.
It is not very important to my argument whether the last clause of the sentence quoted - "without the consent of the legislatures of the States concerned, as well as of the Congress," do nor do not apply to the case of a new State "formed or erected within the jurisdiction of any other State," as well as to the case of a new State "formed by the junction of two or more States or parts of States." If it do not apply, then, there stands the naked unconditional prohibition of the formation of a new State, within the jurisdiction of any other state - direct, simple, and incapable of being misunderstood.
If, admitting that the clause does not apply, it be claimed that the prohibition is overruled and annuled by practice, in the case of Maine, Kentucky and Tennessee, which were, respectively, "formed and erected within the jurisdiction of Massachusetts, Virginia and North Carolina, I have two, alternative answers - 1. In the absence of proof to the contrary, I assume, that both Congress and the people did obey the Constitution, and fulfill all its requirements, in form and substance. 2. If it be shown that, in those instances, the Constitution was disregarded and broken, still I insist that those abuses, do not absolve us from the duty to obey the plain letter and sense of the Constitution.
But if the clause do [sic] apply, still, in this case, its terms have not been complied with. It speaks in the plural - "the legislatures of the States concerned" - i.e. Virginia and West Virginia. The consent required by the Constitution is not the consent of the State, generally, nor of its Governor, nor its Judiciary, nor its Convention, but "the consent of the Legislatures of the States concerned." And that is not the only instance in which the Constitution vests long important powers in the Legislatures of the States - they choose the Senators absolutely, and they direct the manner in which electors of President and Vice-President shall be chosen. And these are Constitutional functions which cannot be exercised by substitute, nor usurped by any other functionary, The division and allotment of powers, as established by the Constitution is not mere form, but vital substance, dear to our fathers, who designed and used it as a guard against the unity of powers - to prevent the concentration of power in a single hand or a few hands. Here the proposition is to make two states out of one. Each one, of course, must have a legislature, and the Constitution requires the consent of both legislatures, before the thing can be done. Now, it is said that the legislature of Virginia (Old Virginia) has consented; but it is not pretended that the legislature of West Virginia has consented - nor that there is, in fact, any such legislature to give consent.
It is a very grave and important thing to cut up and dismember one of the original States of this nation - for a time, in our national youth, the greatest of all - and if we must do it, it behooves us to know that we are acting within the letter of the Constitution, and with a decent respect for the forms of law.
So much for the letter of the law. Let us now examine a little into the sense and spirit of it.
When the rebellion broke out, all the State authorities of Virginia joined it, and made organized and official, as well as individual, insurrection, against the national government, defying its power, and, in order the more effectually to resist it, inviting invasion from States further South. Still a remnant, chiefly in the northwestern counties, remained faithful; and the duty rested upon this government to protect that remnant; to repel that invasion and suppress that insurrection; and thereby to restore Virginia, as she was before the insurrection, to her proper place in the Union. That was and is the plain constitutional duty of this government; and all that this government has yet done, by legislation, by executive action, or by actual war, has been done with that avowed and only object.
When all the governmental officers of the state of Virginia acting in organic form, had renounced their allegiance to the Constitution, and had risen, in armed revolt against the nation, carrying along with them, into flagrant war, a great majority of the people of the State, this government found itself in a strange and anomalous condition. It was charged with duties which could be neither denied nor evaded; and constrained to the use of powers, which undoubtedly exist in contemplation of law, and yet the modes of their action had not been prescribed, only because the necessity to put those powers into practical exercise had not been foreseen.
In this state of things, we took the only course which lay open before us - a course of prudence, of moderation, and of conformity to the principles and objects of the Constitution. It was our sacred duty to suppress the insurrection, to repel the invasion, to put down the official treason in Virginia, which had perverted all the organic powers of the state, into active hostility against the nation. And in performing this duty, we could do no less than recognize all of Virginia which remained faithful to the Constitution, and which demanded the protection and support of the national government.
In this view, and only in this, we advised and consented to the organization of a new government for Virginia, seated, for the present, in the northwest, where alone it could act in safety. Those who organized that government were a small minority, but they were all that remained to us and to the Constitution. And we all knew (certainly I did) that such a government could not be organized by such a people, at such a time, and under such circumstances, in exact conformity to all the minute requirements and particulars ot the Virginia Constitution. But, for that reason - for the crimes of a comparatively few individuals which render an exact compliance with forms impossible, shall a nation be allowed to perish, a State be blotted from the map of the world? No. God forbid. The substance must not be sacrificed to the forms. Our first great Constitutional duty is to save the nation, and the States: and, if possible, we must save them according to law. But if the two duties conflict, still the greater must be performed, and the lesser must yield, even as a conflicting act of Congress must yield to the Constitution.
We all know - everybody knows - that the government of Virginia, recognized by Congress and the President, is a government of necessity, formed by that power which lies dormant in every people, which though known and. recognized, is never regulated by law, because its exact uses and the occasions for its use, cannot be foreknown, and it is called into exercise by the great emergency which, overturning the regular government, necessitates its action, without waiting for the details and forms which all regular governments have. It is intended only to counteract the treacherous perversion of the ordained powers of the State, and stands only as a political nucleus around which the shattered elements of the old commonwealth may meet and combine, in all its original proportions, and be restored to its legitimate place in the Union. It is a provisional government, proper and necessary for the legitimate object for which it was made and recognized. That object was not to divide and destroy the State, but to rehabilitate and restore it.
That government of Virginia, so formed and so recognized, does not and never did, in fact, represent and govern, more than a small fraction of the State - perhaps a fourth part. And the legislature which pretends to give the consent of Virginia to her own dismemberment, is, (as I am credibly informed) composed chiefly if not entirely of men who represent those forty-eight counties which constitute the new State of West Virginia. The act of consent is less in the nature of a law than of a contract. It is a grant of power, an agreement to be divided. And who made the agreement, and with whom? The representatives of the forty-eight counties, with themselves! Is that fair dealing? Is that honest legislation? Is that a legitimate exercise of a constitutional power, by the legislature of Virginia? It seems to me that it is mere abuse, nothing less than attempted secession, hardly veiled under the flimsy forms of law.
Fortunately, however, even that flimsy veil does not cover the substantial wrong. I think I have already shown that under either construction of the clause of the Constitution above cited, the forms of the Constitution have not been fulfilled. The bill was introduced and has been thus far pushed forward towards its completion, under the erroneous idea that it was in verbal and technical conformity to the Constitution, and therefore, and only therefore, that it could ever ripen into a binding law. That was its only foundation; for I think that no reflecting man will seriously affirm that "the legislature of Virginia" which, at Wheeling, on the 13th of May, 1862, gave its consent (not the consent of Virginia) to the dismemberment of the Old Commonwealth, was, in truth and honesty, such legislature of Virginia as the Constitution speaks of - a legislature representing and governing the whole, and therefore honestly and lawfully speaking for the whole, in a matter which concerns the fundamental conditions of the State, and its organic law.
In proceeding to answer the second question - "Is the said act expedient?" - it becomes necessary to look into the bill itself. It is a strange composition, bearing upon its face, unmistakable marks of haste and inconsideration.
The preamble, after various recitals, gives the consent of Congress, "that the forty-eight counties (which may be formed into a separate and independent state)."
The first section declares "that the State of West Virginia be, and is hereby declared to be one of the United States of America, and admitted into the Union, on an equal footing with the original States, in all respects whatever," and allows three representatives, until the next general census. But this is immediately followed by a provision. "That this act shall not take effect until after the proclamation of the President of the United States hereinafter provided for." Which proclamation, very possibly, may never happen, for there is no after-provision in the bill, making it the duty of the President to issue it.
Then follows a paragraph (which seems to be only a preamble to § 2) to the effect that "it being represented to Congress that, since the convention of the 26th of November, 1861, which framed the proposed Constitution for the said State of West Virginia, the people thereof have expressed a wish to change the seventh section of the eleventh article of said Constitution by striking out the same and inserting the following" - giving the exact form of what Congress chooses to have inserted in the State Constitution! The bill does not inform us when, how, or by whom it was "represented to Congress," that the People wished to change their Constitution so recently made by their convention, and ratified by their own votes, as stated with exact particularity in the preamble. If the people of West Virginia had a right to call a convention and make a Constitution for themselves, what is to hinder them from amending the one or making another by the same means and without waiting for Congress to instruct them what to do and how to do it? It looks hardly. However pure the real motive, it lays Congress open to the suspicion of assuming unconstitutional powers, by dictating to a State, in a matter so important and so enduring as its Constitution.
And the second section brings no relief, but strengthens the suspicion and magnifies the evil. "Therefore, Sec. 2. Be it further enacted, That whenever the People of West Virginia shall, through their said convention, and by a vote," etc. "make and ratify the change aforesaid, and properly certify" etc. "it shall be lawful for the President of the United States to issue his proclamation stating the fact, and thereupon this act shall take effect and be in . . . force from and after sixty days from the date of said proclamation."
In view of this section, it is manifest that the very existence of the Act, even after you have signed it, is made to depend upon the implicit obedience of the people of West Virginia. They must "make and ratify the change aforesaid," and in the precise manner prescribed. They cannot choose new agents to amend their own constitution. They must do it "through their said convention" - the same which sat at Wheeling on the 26th of November, 1861. None other can be trusted! Perhaps that convention is no longer in existence. It was called for a particular purpose, and having done its work, and the people having ratified it - perhaps the convention is functus officio, dead and gone. Surely it was not intended as a permanent institution, to last through all times. Yet that seems to be the idea of the bill, for it fixes no limit of time - whenever the people shall do it, through their said convention.
Again, when all this is done, as ordered, still, the Act may fail and the new State perish in the birth, for want of a proclamation. The bill declares that "it shall be lawful for the President to issue his proclamation"; but it is not his duty to do whatever may be lawfully done. By express Act of Congress it is lawful for the President, by proclamation, as in this case, to close all the Southern ports, but he has not found it expedient to exercise the power.
I need not trouble you with many remarks upon the very awkward shape and inconvenient geographical relations, of the new State, and the still greater awkwardness and inconvenience in which the old state would be left, by the proposed division. Such a division, if now made by force of untoward circumstances, could not long stand. Its evils would not be long endured.
I consider this proceeding revolutionary, all the more wrong, because it is needlessly begun at a moment when we are strained to the uttermost, in efforts to prevent a far greater revolution. If successful, it will be "at once an example and fit instrument" for tearing into pieces the regions further south, and making out of the fragments, a multitude of feeble communities. And, for what good end? We may thereby stimulate the transient passions and prejudices of men in particular localities, and gratify the personal ambition and interest of a few leaders in those little sections. We may disjoint the fabric of our national government, and destroy the balance of power in Congress, by a flood of senators representing a new brood of fragmentary States.
And now, Sir, I give it as my opinion that the bill in question is unconstitutional; and also, by its own intrinsic demerits, highly inexpedient.
And I persuade myself that Congress, upon maturer thought, will be glad to be relieved by a veto, from the evil consequences of such improvident legislation.
All which is, most respectfully submitted,
Ed. W. Bates
Attorney General

Lincoln split 3 to 3, all Lincoln's Cabinet were lawyers of some reknown, and Sec'y of State Seward gave a conmcise and logical opposing opinion to Bates'. As did, as noted, Lincoln a lawyer of some ability himself.