In Cancemi v. People (18 NY 128 [1858]) where a sitting juror was "withdrawn by the express request and consent of the prisoner," and a verdict of conviction was rendered by 11 jurors only, the Court of Appeals was presented for the first time with the question whether a criminal defendant may lawfully waive his right to a jury of 12 persons. There, the prosecution noted that "no definite number was fixed upon, of twelve, until the time of Henry II" and that, although "ecclesiastical authority had made precedent for it" as it was the number of apostles, the courts could have granted a lesser number had the parties so requested (7 Abb Prac at 288). It was argued that, as the right to a jury of 12 was secured to a criminal defendant "by the common law incorporated into Magna Carta, and sanctioned by the constitution of our State" for his "especial protection," such a defendant should be permitted to waive that right under appropriate circumstances. (7 Abb Prac at 289). The Cancemi Court disagreed. While it recognized that a criminal defendant may lawfully waive or forfeit certain constitutional rights, it noted that the "present constitution" provided for the waiver of a jury trial only in civil cases. Explaining that "the substantial constitution of the legal tribunal and the fundamental mode of its proceeding are not within the power of the parties," it concluded that neither the public prosecutor nor the defendant had authority to consent to such an essential change. (18 NY at 136.) To hold otherwise, it reasoned, would necessarily countenance the waiver of a criminal jury in its entirety, a prospect it considered to be intolerable under the existing constitution. "If a deficiency of one juror might be waived, there appears to be no good reason why a deficiency of eleven might not be; and it is difficult to say why, upon the same principle, the entire panel might not be dispensed with, and the trial committed to the court alone. It would be a highly dangerous innovation, in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the constitution and laws establishing and securing that mode of trial, for the court to allow of any number short of a full panel of twelve jurors, and we think it ought not to be tolerated." (Id. at 138.)