378
Opinion of the Court
yond the reach of the legislature." ' " Tull v. United States, supra, at 426 (citations omitted); see also Galloway v. United States, 319 U. S. 372, 392 (1943).
The "substance of the common-law right" is, however, a pretty blunt instrument for drawing distinctions. We have tried to sharpen it, to be sure, by reference to the distinction between substance and procedure. See Baltimore & Carolina Line, supra, at 657; see also Galloway v. United States, supra, at 390-391; Ex parte Peterson, 253 U. S. 300, 309 (1920); Walker v. New Mexico & Southern Pacific R. Co., 165 U. S. 593, 596 (1897); but see Sun Oil Co. v. Wortman, 486 U. S. 717, 727 (1988). We have also spoken of the line as one between issues of fact and law. See Baltimore & Carolina Line, supra, at 657; see also Ex parte Peterson, supra, at 310; Walker v. New Mexico & Southern Pacific R. Co., supra, at 597; but see Pullman-Standard v. Swint, 456 U. S. 273, 288 (1982).
But the sounder course, when available, is to classify a mongrel practice (like construing a term of art following receipt of evidence) by using the historical method, much as we do in characterizing the suits and actions within which they arise. Where there is no exact antecedent, the best hope lies in comparing the modern practice to earlier ones whose allocation to court or jury we do know, cf. Baltimore & Carolina Line, supra, at 659, 660; Dimick v. Schiedt, 293 U. S. 474, 477, 482 (1935), seeking the best analogy we can draw between an old and the new, see Tull v. United States, supra, at 420-421 (we must search the English common law for "appropriate analogies" rather than a "precisely analogous common-law cause of action").
C
"Prior to 1790 nothing in the nature of a claim had appeared either in British patent practice or in that of the
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