Sorry, just had to point this one out. What I mean is that there was clearly a Virginia government which was in the majority of the state, and that the US basically followed a legal dodge to get the split to take place.
While it does make legal sense, it also sets a precedent which means the US couldn't possibly object to the shadow Confederate governments of Maryland, Delaware, Kentucky, Missouri or Kansas!
It may be a legal dodge, but it gets to a more fundamental point of the legal status of the rebelling states. IOTL, two post-war Supreme Court rulings set out what the legal status of the secedded states was before the establishment of military governments by the Union. The first,
Texas v. White, concerned the sale of United States Treasury bonds by the rebel government in Texas. The important part of the Court's ruling was that Texas' secession had no legal basis and, as such, the state government which passed the ordinance of secession voided its own existence and left the state of Texas without a legitimate government. The state itself, however, remained a part of the Union for the duration, simply one whose government was illegitimate and in a state of rebellion and as such one without electoral or congressional representation. The rights of the
state itself and of the people as US citizens however, remained intact. Basically, a state can only secede with the consent of the other states (through Congress), and any such act without that consent is a rebellion which the United States is compelled to put down. Think of it like this: A state (as distinct from the state government) cannot unilaterally secede, so any state government which does puts itself in rebellion and illegitimates its claim to speak for the state. Some states, like Virginia, constituted loyal Unionist governments which exercised the rights of the state as a whole. Other, like Texas, did not. In both cases the issue is of the legitimate state government, not of the state itself.
In
Williams v. Bruffy, the Court held that establishment of an independent country is dependent on success. If the government trying to establish itself as independent succeeds, then it is legitimate, as are all its acts from its incorporation. If it fails, then all of its acts are invalid. The relevant portion of the opinion is:
"The validity of its acts, both against the parent state and the citizens or subjects thereof, depends entirely upon its ultimate success; if it fail to establish itself permanently, all such acts perish with it; if it succeed and become recognized, its acts from the commencement of its existence are upheld as those of an independent nation."
In my opinion, the view of
Buffy, is more importan for the post-war situation. The United States could, in this case will, recognize the independence of the Confederacy and the secession of its component states. Doing so does not concede any acknowledgement of their legitimacy before the signing of the treaty, as until recognition by the United States and the remaining states they are in rebellion. In this case, the signing of the treaty would be held to constitute the required legal consent to secession. Practically of course the rebellion is legitimate because it has suceeded in establishing itself as an independent entity, but there still needs to be a legal framework for the United States to recognize the secession as part of the peace treaty. After all, recognizing the secession of the Southern states is the part of the treaty that actually ends the war and gives independence to the South. The Confederacy is really just an entity which the seceded states have chosen to join and have nominated to act on their behalf. How that entity organizes it's own affairs is its own business, but in a legal sense the Union deals with the Confederacy because it represents the military force of the rebellion and because the seceded states have authorized it to represent them, in and of itself, the Confederacy has no legitimacy to negotiate on the matter of recognition.
Basically, the Confederacy winning the war is what persuades the Union and the loyal states to recognize the secession of the rebel states and their incorporation of the Confederacy. But the treaty still needs to create the legal consent.
I kind of went down the rabbit whole of legal technicalities of secession here, and that's probably mind numbing to most of the other readers, so my apologies. I just find these legal questions and alternate legal structures really really fascinating. To return to the initial discussion, Union recognition of the Restored government of Virginia in no way implies recognition of the Confederate exile governments of Maryland, Kansas, Missouri, Delaware, or Kentucky. All of those states remain in the Union until the United States consents to their separation. So until that point the Unionist governmentof Virginia is the rightful representative of the state, simply one in control of only a small portion of it and the the Confederate governments of split states are illegitimate authorities of insurrections against the rightful governements until the Union recognizes them as legitimate.
